Petition for Writ of Certiorari — Brown v. United States (No. 05-1041)

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a “sentencing factor” requiring only judicial determination

and proof by a preponderance of the evidence.

In McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986),

Justice Rehnquist wrote for the majority and sustained

the validity of a Pennsylvania statute that provided for a

mandatory minimum 5 year sentence upon conviction of

certain enumerated felonies after a finding by the sentenc-

ing judge by a preponderance of the evidence that the

defendant possessed a firearm. Justice Rehnquist noted

“{slection 9712 ‘ups the ante’ for the defendant only by

raising to five years the minimum sentence.... [{] The

statute gives no impressien of having been tailored to

permit the visible possession finding to be a tail which

wags the dog of the substantive offense.” Jd. at 88 (quota-

tions in original) (emphasis added).

In Jones v. United States, 526 U.S. 227, 233 (1999),

the Supreme Court found “serious bodily injury” to be an

element of the offense of carjacking where the statute

authorized “steeply higher penalties.” Justice Souter

writing for the majority stated, “liJf a potential penalty .

might rise from 15 years to life on a nonjury determina-

tion, the jury’s role would correspondingly shrink from the

significance usually carried by determinations of guilt to

the relative importance of low-level gatekeeping. . . .” Jd.

at 243-244.

In Castillo v. United States, 530 U.S. 120 (2000), the

Supreme Court found that the fact of whether or not a

firearm carried during a crime of violence was a “machine-

gun” was an element of the offense and not a sentencing

factor. The judicial determination of the presence of a

“machinegun” resulted in an increase of the minimum

sentence from 5 years to 30 years. Justice Breyer stated

that “the length and severity of an added mandatory

sentence [| weighs in favor of treating such offense-related

words as referring to an element.” Jd. at 131.

In Harris v. United States, 536 U.S. 545 (2002) the

Supreme Court held that the commission of a drug traf-

ficking offense while using or ca_rying a firearm defined a

single offense and whether the firearm was “brandished”

or “discharged” was merely a sentencing factor. The

Supreme Court distinguished Jones because the conse-

quence of a judicial determination that a firearm had been

brandished or discharged only resulted in “incremental

changes” to the minimum penalty. /d. at 554.

The requirements of 21 U.S.C. § 851 lend support to

the argument that congress intended the “prior convic-

tions” addressed in § 841 et seg. to be elements of the

substantive offense. Section 851 of Title 21 describes the

proceedings by which the government may establish the

fact of a defendant’s prior convictions in order to increase a

sentence after a conviction within § 841 et seg. In sum-

mary, subsection (a) mandates that the government file an

information before trial which includes a written descrip-

tion of the prior convictions the government will rely upon

to seek an increased sentence. 21 U.S.C. § 851(a). Subsec-

tion (b) mandates that the court “shall” inquire uf the

defendant whether or not he affirms or denies the alleged

convictions. 21 U.S.C. § 851(b). Subsection (c) entitles the

defendant to a hearing subsequent to his written challenge

to the validity of the prior conviction. 21 U.S.C. § 851(c). At

the hearing, held before a judge, the government has the

burden of proof beyond a reasonable doubt on any issue of

fact except as to constitutional challenges which require

the defendant to prove any issue of fact by a preponder-

ance of the evidence. 21 U.S.C. § 851(c)(1), 21 U.S.C.

§ 851(c)(2). If an alleged conviction occurred more than

five years before the filing of the information the statute of

limitations contained in § 851(e) prohibits a defendant

from challenging its validity. 21 U.S.C. § 851(e).

Brown asserts that if he is successful in persuading

this court that his prior convictions should have been

submitted to the jury — either based on a Sixth Amend-

ment challenge or based on this court finding that a

statutory interpretation of § 841 requires the fact of prior

convictions to be elements of the offense — then 851(e)

barring him the right to challenge the priors because they

were more than 5 years old must fall.

In United States v. Henderson, 320 F.3d 92, 104 (1st

Cir. 2003), the First Circuit court found § 851(e) constitu-

tional. However, that finding was based on the court’s

determination that “no fundamental right” was at issue.

Unlike the illegal reentry statute, 21 U.S.C. § 851

provides notice to the defendant by the requirement that

the government file an information, entitles both the

defendant and government to introduce evidence at a

hearing and provides -for proof beyond a reasonable doubt

(except as to constitutional challenges which require the

defendant to prove any issue of fact by a preponderance of

the evidence). The protections included in § 851 make

clear that Congress intended that prior convictions be

more than mere sentencing enhancements.

In Brown’s case, the increase of the minimum sen-

tence from 10 years to life imprisonment was not “incre-

mental.” A statutory interpretation of 841(b), et seg. will

support the proposition that factual findings of pricr

convictions must be elements of the substantive offense.

By removing the fact of prior convictions from the jury’s

determination, the jury’s role is reduced to “low-level

gatekeeping.” This most certainly made the recidivism

element of 21 U.S.C. § 841 et seq. the “tail which wags the

dog of the substantive offense.” Regardless of the label —

either sentencing enhancement or element of the offense —

the judicial determination that resulted in a life sentence

violated the Fifth and Sixth Amendments.

2. The sentencing provisions of 21 U.S.C. § 841 are

ambiguous.

Brown asserts that 21 U.S.C. § 841 contains an

ambiguity that necessitates Supreme Court review. In

summary, the word “cocaine” which precedes the words “its

salts” in 841(b)(1)(A)Gi\ IIT) means pure cocaine. Its chemical

formula is (C[17)H[2NNO[4]). The words “cocaine base” in

841(b)(1)(A)Gii) also means pure cocaine and also has an

accepted chemical formula of (C[17]H[21]NO[4]). Therefore,

a verdict of possession of “cocaine base” can result in two

distinct sentences.

Upon conviction of 21 U.S.C. § 841(b)(1)(A)(iii) and

846, conspiracy and possession with the intent to distrib-

ute “cocaine base,” the trial court imposed a sentence of

life without parole. Brown did not object at the trial court

to the ambiguity of 21 U.S.C. § 841(b)\(1A)(iii) and the

First Circuit found he failed to survive plain error review.

Brown asserts that the First Circuit erred when it rejected

his ambiguity argument.

The ambiguity of 21 U.S.C. § 841 lies in the fact that

two separate penalty provisions attach to a conviction of

possession of more than 50 grams of “cocaine base.” The

government conceded that the “broad definition” of cocaine

in § 841(b)(1)(A)(ii) covers cocaine base. (Gov. Brief to the

First Circuit at p. 58). This confluence in the statute

allows a sentencing judge to sentence a defendant con-

victed of possessing more than 50 grams of cocaine base

pursuant to 841(b)(1)(C) which would result in a prison

term of not more than 30 years — even if two prior drug

convictions existed,-or pursuant to the more onerous

penalty in 841(b)(1)(A)(iiX ID which mandates a life sen-

tence when the defendant has two or more prior drug

convictions.

Title -21 U.S.C. § 841(b) establishes penalties for

possession with intent to distribute illegal drugs. Penalties

increase depending on the weight and type of drugs involved.

Possession of more than 50 grams of “cocaine base” will

trigger a much greater sentence than possession of the same

quantity of “cocaine.” Compare 21 U.S.C. § 841(bX1)(A), 21

U.S.C. § 841(b)(1\(B) and 21 U.S.C. § 841(b\(1XC).

At trial the government’s forensic chemist testified

that cocaine and cocaine base have the same compound.

The implication of the fact that the words “cocaine” and

“cocaine base” carry the same chemical meaning” was

addressed in United States v. Brisbane, 367 F.3d 910, 912

(D.C. Cir. 2004), cert denied, 160 L. Ed. 2d 245, 125 S. Ct.

342, 2004 U.S. LEXIS 6887, 73 U.S.L.W. 3236 (U.S. 2004).

Because “cocaine” and “cocaine base” have the same

chemical formula “the statute appears ambiguous, provid-

ing two different sets of penalties for the same offense.”

Ibid. at 912. Therefore, a jury finding of “cocaine base” can

also authorize the same penalty as “cocaine” under

841(b)(1)A)(ii) 1D) because “cocaine” and “cocaine base” are

chemically indistinct. It is well settled that “cocaine base”

is a form of “pure cocaine” and each has the same chemical

formula. See, e.g., United States v. Barbosa, 271 F.3d 438

(3rd Cir. 2001); United States v. Fisher, 58 F.3d 96 (4th Cir.

1995); United States v. Robinson, 144 F.3d 104 (1st Cir.

1998). .

A number of circuits have resolved ambiguity issues in

the statute by determining that “cocaine base” means

“crack” for purposes of sentencing. Therefore even though

cocaine base and pure cocaine have the same chemical

formulas “crack” has an additional meaning and is sub-

jected to increased penalties. In United States v. Booker,

70 F3d 488, 494 (7th Cir. 1995), the Seventh Circuit held

that cocaine base and cocaine have the same scientific

meaning but concluded that Congress and the sentencing

commission intended enhanced penalties to apply to

“crack.”

The Third Circuit made distinctions depending on the

basis for the sentence. In United States v. Barbosa, 271

F.3d 438, 467 (3rd Cir. 2001), it held “while the term

cocaine base means only “crack” when a sentence is

imposed under the Sentencing Guidelines, “cocaine base”

encompasses all forms of cocaine base with the same

chemical formula when the mandatory minimum sen-

tences under 21 U.S.C. § 841(b)(1) are implicated.” bid.

In United States v. Fisher, 58 F.3d 96, 99 (4th Cir.

1995), the Fourth Circuit resolved the same ambiguity

argument by interpreting clause (ii) to address cocaine

powder and other forms except “crack” and clause (iii) to

address “crack.”

The Eleventh Circuit held that under the Guidelines,

forms of cocaine base other than “crack” are treated as

cocaine hydrochloride for sentencing purposes. United

States v. Munoz-Realpe, 21 F.3d 375, 377 (11th Cir. 1994)

(interpreting Guideline 2D1.1(c)).

The issues presented here are similar to those the

Supreme Court confronted in United States v. Neai, 516

U.S. 284 (1996) where the Court found that § 841(b)(1)

directed a sentencing court to take into account the actual

weight of the blotter paper with LSD even though the

Sentencing Guidelines required a different method of

calculating the weight of LSD. The Supreme Court ad-

hered to stare decisis in its interpretation of the statute

and did not decide what deference the Sentencing Com-

mission deserved in its separate interpretation of the

statute. Until Congress acts to remove the ambiguity from

the statute this Court should apply the rule of lenity and

sentence Brown to the lowest sentence authorized by the

jury’s verdict.

The rule of lenity mandates that an ambiguous

criminal statute should be construed in favor of the ac-

cused. Staples v. United States, 511 U.S. 600, 619, n. 17

(1994). The Supreme Court has held that “[i]t is not at all

unusual to give a statute’s ambiguous language a limiting

construction called for by one of the statute’s applications,

even though other of the statute’s applications, standing

alone, would not support the same limitation. The lowest

common denominator, as it were, must govern.” Clark v.

Martinez, 2005 U.S. LEXIS 627, citing e.g., Leocal v.

Ashcroft, 543 U.S. .., 160 L.. Ed. 24 271; 126 8. Ct.

——)

377 (2004) (slip op. at 9-10, n. 8) (explaining that, if a

statute has criminal applications, “the rule of lenity

applies” to the Court’s interpretation of the statute ... ”).

Brown maintains that when such an ambiguity exists the

rule of lenity entitles him to be sentenced under the less

onerous penalty provision in order to avoid a United States

v. Colon-Ortiz, 866 F.2d 6 (1989) constitutional problem.

The ambiguity in defendant’s case should be resolved

by application of the rule of lenity and imposition of the

lower sentence applicable for possession of more than 50

grams of “cocaine.” The court should remand for re-

sentencing pursuant to 841(b)(1\(C). -

CONCLUSION

For the above reasons, Charles Brown requests this

Court grant his petition for certiorari.

Respectfully submitted,

TAMARA A. BARNEY

Counsel of Record

MACFADYEN, GESCHEIDT & O’BRIEN

The Owen Building

101 Dyer Street

Providence, RI 02903

(401) 751-5090

Attorney for Petitioner

Charles C. Brown

App. 1

UNITED STATES OF AMERICA, Appellee, v.

CHARLES H. ISLER, Defendant, Appellant.

UNITED STATES OF AMERICA, Appellee, v.

BILAL ABDUL RASHID, Defendant, Appellant.

UNITED STATES OF AMERICA, Appellee, v.

CHARLES C. BROWN, Defendant, Appellant.

No. 04-1565, No. 04-1566, No. 04-1673

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

429 F.3d 19; 2005 U.S. App. LEXTS 24600;

68 Fed. R. Evid. Serv. (Callaghan) 973

November 16, 2005, Decided: APPEALS FROM

THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF RHODE ISLAND. Hon. Mary M. Lisi,

U.S. District Judge. COUNSEL: James E. Methe

for appellant Charles H. Isler.

William J. Murphy, with whom Murphy & Fay, LLP was

on brief, for appellant Bilal Abdul Rashid.

Tamara A. Barney, with whom MacFadyer cGescheidt &

O’Brien was on brief, for appellant Charles C. Brown.

Donald C. Lockhart, Assistant United States Attorney,

with whom Robert Clark Corrente, United States Attor-

ney, and Adi Goldstein, Assistant United States Attorney,

were on brief, for appellee. -~

JUDGES: Before Torruvella, Circuit Judge, Hill, Senior

Circuit Judge,* and Howard, Circuit Judge.

OPINION BY: HOWARD

* Of the U.S. Court of Appeals for the Eleventh Circuit, sitting by

designation.

App. 2

OPINION:

HOWARD, Circuit Judge. In these consolidated

criminal appeals, defendants Charles Brown, Charles

Isler, and Bilal Abdul Rashid challenge their convictions

and sentences for participating in a cocaine base distribu-

tion conspiracy. We affirm the convictions and Brown’s

sentence, but vacate Isler and Rashid’: .entences.

We present the facts in the light most favorable to the

verdicts. See United States v. Boulerice, 325 F.3d 75, 79

(1st Cir. 2003).

On the afternoon of June 3, 2003, Detective Scott

Partridge of the Providence Police Department was sur-

veilling the rear of Brown’s multi-family house from an

adjacent yard. The house had previously been the subject

of extensive surveillance, and the Providence police had

executed a number of controlled buys of cocaine base from

the first floor apartment. As Partridge watched, Brown

pulled his car into his house’s yard, which was empty

except for an old junk car. Brown exited the car carrying a

cheese puff container and a brown paper bag. Partridge

saw Brown remove a plastic bag containing a white

substance from the paper bag and place it\in the false

bottom of the container. Brown then returned the con-

tainer to his car and entered the first floor apartment with

the bag and its remaining contents. No one else entered or

left the house. :

Approximately half an hour later, Partridge and

several other officers executed a search warrant for the

apartment. Two of the officers covered the front door, and

App. 3

the rest entered through the back. All were clad in black

windbreakers bearing the legend “Providence Police” in

large, yellow letters. Partridge’s team proceeded to the

rear door of the first floor apartment, announced its

presence, received no response, and then forcibly entered.

The entry took considerable effort: the rear door was

heavily fortified with steel bars, had no handle, and could

be opened (from either side) only with a key for the heavy

deadbolt lock. Also, a second interior door was wedged in

tightly inside the fortified exterior door. Notably, the

exterior door contained a four by six inch “cut out” and a

large kitchen knife was hidden in the door’s interior panel.

Brown, Isler, and Rashid were standing near the

kitchen table when the officers entered through the back

entrance, and attempted to flee through the front door.

But upon hearing the other officers outside, they reversed

field and attempted to force their way past the original

entry team. A violent struggle ensued, and the defendants

were subdued. Brown had $65 upon his person, Rashid

had $1078, and Isler had $515.

The apartment was small and sparsely furnished,

except for the kitchen. On the kitchen table, surrounded

by three chairs, the officers found monitors for a sophisti-

cated surveillance system comprised of several cameras, a

motion sensor, an intercom, and a pair of exterior lights —

one red and the other green. On the same table was the

paper bag that Brown had carried into the apartment.

Inside the paper bag were two plastic bags containing

142.45 grams of cocaine base. Also on the table were a

digital scale, plastic bags, plastic bags with their corners

snipped off, scissors, baking soda, a razor, a cooking plate

with cocaine base residue, $250 in cash, two cell phones, a

pager, and Isler’s wallet and keys. The only key for the

App. 4

deadbolt lock on the fortified rear door hung on a hook

nearthe table.

The officers also vollected 26 small packages contain-

ing 6.328 grams of cocaine base from an overflowing toilet

in a nearby bathroom. A search of Brown’s car yielded the

cheese puff container, which contained an additional 16.73

grams of cocaine base.

All three defendants were charged with conspiracy to

possess with intent to distribute 50 or more grams of

cocaine base (Count J), see 21 U.S.C. § 846, and possession

with intent to distribute 50 or more grams of cocaine base

(Count II), see 21 U.S.C. §$§ 841(a\1) & (b)(1)(A). In addi-

tion, based on the narcotics found in his car, Brown was

charged with possession with intent to distribute 5 or

more grams of cocaine base (Count III), see 21 U.S.C.

§§ 841(a)(1) & (b)(1)(B).

At trial, the government called several officers and

forensic specialists, and the government’s case included

expert testimony that the surveillance equipment, barri-

caded.doors, and cut out’ on the exterior door were indica-

tive of a drug house. Only Brown testified for the defense.

He testified that he had been let in by three unidentified

men who left moments before the raid; that he was present

only to collect rent from his tenant; that there were no

drugs in the house or his car; that he had never seen

Rashid or Isler before the raid; that Rashid was there to

purchase his tenant’s minivan; that Isler was sitting in a

bedroom (possibly listening to music); that there were at

' The cut out was large enough to pass drugs and money through,

but small enough that a drug purchaser could not get a clear look at the

seller on the other side of the door.

App. 5

least four cars in the yard at the time of the raid; that he

tried to let the police in when they knocked but they

ordered him away from tiie door; that the defendants did

not try to flee or resist; and that the security and surveil-

lance equipment had been installed by the previous owner

and/or was typical for homes in the area.

The jury convicted Brown on all counts. The jury also

convicted both Isler and Rashid, but held them responsible

for iess than 5 grams of cocaine base on both counts (and

not for the 50 or more grams originally charged in the

indictment). Isler and Rashid were sentenced to 262 and

210 months’ imprisonment, respectively. Brown received a

mandatory life sentence because he had two prior felony

narcotics convictions. See 21 U.S.C. § 841(b)(1)(A). 2

II.

The defendants challenge their convictions and

sentences on several grounds. The primary appellate

issues are (1) whether there was sufficient evidence to

sustain Isler and Rashid’s convictions; (2) whether the

district court erroneously permitted detailed cross-

examination concerning Brown’s prior convictions; (3)

whether the court abused its discretion when it admitted

testimony from one of the government's experts; (4)

whether the government’s closing argument was inappro-

priate and prejudicial; (5) whether the court should have

applied the rule of lenity to sentence Brown to a shorter

prison term because the relevant provisions of 21 U.S.C.

§ 841 are ambiguous; and (6) whether the defendants are

App. 6

entitled to resentencing under United States v. Booker, 543

U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005),”

A. Sufficiency of the Evidence

Rashid and Isler claim that the district court errone-

ously denied their motions for acquittal because the

government demonstrated only that they were “merely

present” at the drug raid.* See United States v. Llinas, 373

F.3d 26, 32 (1st Cir. 2004) (government must prove more

than mere presence to obtain drug conspiracy conviction).

Isler and Rashid maintain that they did not own the

house, that the three defendants had never met before the

raid, that neither Rashid nor Isler was ever in the house

before the raid, and that there was no evidence that they

possessed or agreed to bossess the narcotics.

We review the denial of a motion for acquittal de novo.

See Boulerice, 325 F.3d at 79. We will affirm if, after

reviewing all the evidence in the light most favorable to

the government and drawing all reasonable inferences in

its favor, we conclude that a rational jury could find the

essential elements of the crime proved beyond a reason-

able doubt. Jd.

,’

—' The government maintains that certain of the defendants

arguments were not preserved for plenary appellate consideration. We

shall assume, without deciding, that the issues were properly preserved

unless we state otherwise.

* Rashid also makes a passing attempt to assign error to the

district court’s failure to provide a limiting instruction that he had

requested. But Rashid’s argument is undeveloped and therefore

forfeited. See United States v. Vasquez-Guadalupe, 407 F.3d 492, 499-

500 (ist Cir. 2005). In any event, there was no abuse of discretion, as

the district court ultimately instructed the jury that Brown’s prior

convictions could only be considered in evaluating Brown’s credibility.

App. 7

Isler and Rashid argue as though only direct evidence

can support their convictions. But of course, this is not so;

indeed the government may rely entirely on circumstan-

tial evidence to prove the charged offense. See United

States v. Soler, 275 F.3d 146, 150 (1st Cir. 2002); see also

United States v. Batista-Polanco, 927 F.2d 14, 19 (1st Cir.

1991) (a conspiracy can be demonstrated by “a develop-

ment and a collocation of circumstances”) (internal citation

and quotation omitted). As we have explained:

defendant’s presence at a place where contra-

band is found may or may not be purely coinci-

dental. The attendant circumstances tell the tale

— and the culpability of a defendant’s presence

hinges upon whether the circumstances fairly

imply participatory involvement. In other words,

a defendant’s “mere presence” argument will fail

in situations where the “mere” is lacking.

United States v. Echeverri, 982 F.2d 675, 678 (1st Cir.

1993).

The facts surrounding Isler and Rashid’s arrest

permitted the jury to find that they were more than

merely present. Detective Partridge saw Brown bring a

substance that proved to be cocaine base into the house.

When the officers burst through the heavily fortified back

door, Isler, Rashid, and Brown were the only persons in

the apartment and were standing near the kitchen table

with three chairs. On the kitchen table were the monitors

for an elaborate surveillance system, a quantity of cocaine

base suggestive of narcotics distribution (and not personal

use), cash, Isler’s wallet and keys, and various drug

packaging paraphernalia. In the bathroom, a few feet

away, was evidence of a hasty and unsuccessful attempt to

flush more cocaine base down the toilet. Compare Soler,

App. 8

275 F.3d at 151; Echeverri, 982 F.2d at 678-79; Batista-

Polanco, 927 F.2d at 17-19.

Further, the house was a fortress, with heavily rein-

forced doors and an extensive surveillance system. From

this evidence, the jury could have inferred that the dealers

wished to conduct their business in absolute secrecy and

security, and that only the conspiracy’s participants would

be permitted into the apartment. See generally Llinas, 373

F.3d at 32 (“criminal conspirators do not involve innocent

persons at critical stages of a drug deal”); United States v.

Montilla-Rivera, 115 F.3d 1060, 1064 (1st Cir. 1997)

(criminals do not welcome innocent bystanders as wit-

nesses to their crimes); United States v. Ortiz, 966 F.2d

707, 712 (1st Cir. 1992) (criminals “rarely seek to perpe-

trate felonies before larger-than-necessary audiences”).

Finally, the defendants fled from the police, and, when

cornered, engaged a violent struggle with the officers. In

appropriate circumstances, flight can be probative of guilt.

See United States v. Carpenter, 403 F.3d 9, 12 (1st Cir.

2005); United States v. Otero-Mendez, 273 F.3d 46, 53 (1st

Cir. 2001).

In sum, the district court properly concluded that

there was sufficient evidence to support the convictions.*

B. Prior Convictions

Brown contends that the district court abused its

discretion and prejudiced his defense by permitting the

* For these same ~vasons, it was not an abuse of discretion for the

district court to deny isler and Rashid’s motions for a new trial. See

Montilla-Rivera, 115 F.3d at 1064.

App. 9

government to cross-examine him in detail about his prior

convictions before later ruling that the evidence was

inadmissible.

Brown had three prior felony narcotics convictions, all

involving marijuana. Before trial, the government filed a

notice of intent to introduce the prior convictions for

impeachment, see Fed.R.Evid. 609, and as admissible

other bad act evidence, see Fed.R.Evid. 404(b), in anticipa-

tion of a mere presence defense. Brown never objected to

the notice or filed a motion in limine to exclude the evi-

dence. On direct examination, Brown testified about the

basic facts of his prior convictions.’ On cross-examination,

the government re-elicited these basic facts and then

inquired, under Rule 404(b), about the historical facts

underlying his record. During the government’s rebuttal

argument, the prosecutor made reference to Brown’s

testimony about his prior convictions and Brown objected.

After a bench conference, the court ruled that the 404(b)

evidence of prior convictions was not allowed and in-

structed the prosecutor to refrain from making additional

reference to it. The court did not, however, strike the prior

testimony concerning the details of the prior convictions.

Brown argues that he was prejudiced by the court’s failure

to exclude the 404(b) evidence. The government contends

that there was no abuse of discretion and, in any event,

the challenged testimany was harmless.

= —

* Brown admitted the following convictions and sentences: (1) a

1992 conviction for possession of marijuana for which he served six

months of a four-year sentence; (2) a 1995 conviction for possession of 1-

5 kilos of marijuana for which he served three years of a fifteen-year

sentence; and (3) a 1995 conviction for possession of marijuana with

intent to deliver and conspiracy to traffic in marijuana for which he

served three years of a ten-year sentence.

App. 10

_ We choose to proceed directly to the harmless error

inquiry. “The admission of improper testimony is harmless

if it is highly probable that the error did not influence the

verdict.” United States v. Garcia-Morales, 382 F.3d 12, 17

(1st Cir. 2004). A harmless error analysis is case specific,

and requires consideration of such factors as the “central-

ity of the tainted evidence, its uniqueness, its prejudicial

impact, the use to which the evidence was put, and the

relative strengths of the parties’ cases.” Id.

Brown focuses on the admission of three facts: (1) that

he did not remember the weight of the marijuana involved

in one offense (but the prosecutor suggested ten pounds);

(2) his exculpatory account of his involvement in one

offense (essentially that Brown threw the marijuana in the

trash at someone’s behest); and (3) that he was arrested

for one offense with $16,000 on his person. In the circum-

stances of this case, we conclude that these facts did not

sway the jury.

The challenged facts added little to the basic facts of

convictions, which had been recounted twice on direct and

cross-examination. Moreover, they were not highlighted in

the prosecution’s argument, and were inconsequential

when evaluated against the balance of the prosecution’s

considerable evidence.° Any error in the admission of this

evidence was harmless.

* Brown also argues that the prosecutor committed misconduct by

referring to Brown’s prior convictions during cross-examination and

closing argument. But as we have explained, it was not apparent until

the government’s rebuttal argument that the prior conviction evidence

was off-limits. After the district court’s ruling, the prosecutor made no

further mention of the convictions. There was no misconduct.

App. 11

C. A’Vant’s Testimony

Brown argues that the district court abused its discre-

tion by admitting certain testimony from Officer Angelo

A’Vant, one of the government’s expert witnesses, concern-

ing the features of a drug house. Brown does not challenge

A’Vant’s qualifications as an expert. Rather, he challenges

the relevance of his testimony to Brown’s house. Specifi-

cally, Brown complains that A’Vant was permitted to

testify that the security and surveillance set-up at Brown’s

house was something that he had never previcusly seen.’

According to Brown, this testimony was irrelevant and

highly prejudicial because it permitted the prosecutor to

argue that the defendants were unusually “sophisticated”

criminals. Brown concedes that our review is for plain

error only. A plain error must be “clear or obvious, affect

substantial rights, and seriously affect the fairness,

integrity, or public reputation of judicial proceedings.”

Garcia-Morales, 382 F.3d at 18.

Brown’s argument fails for many reasons, the most

basic of which is that he misstates the essence of A’Vant’s

testimony. Prior to the challenged testimony, A’Vant had

testified at length that the barricades and surveillance

features on Brown’s house were consistent with those at

other drug houses that he had raided. The routine patrol

questions were intended to show that “normal” houses in

” Brown complains only about two snippets in A’Vant’s direct

testimony. In the first, AVant responded to the question whether he had

ever encountered barricaded doors on “routine” police calls (as distin-

guished from drug raids) as follows: “On routine calls, | have never seen

a similar set-up like this is my career.” In the second, in response to the

question how many times he had seen a green light bulb in the hallway

of a residence during his years as a patrol officer, A°Vant stated: “I don’t

ever recall seeing a green light bulb.”

App. 12

the area did not have such features. This testimony was

responsive to Brown’s defense that he was merely present

at the crime scene, which Brown supported with his

testimony that his house was just like any other house in

that part of Providence. In short, A’Vant simply did not

testify that he was unfamiliar with the equipment at

Brown’s house. There was no error in the admission of

A’Vant’s testimony, plain or otherwise.”

D. Prosecutorial Misconduct

Isler claims that the prosecutor, during her closing

argument, twice improperly shifted the burden of proof to

the defendants and improperly vouched for the govern-

ment witnesses.

In the first challenged remark, the prosecutor was

discussing Brown’s testimony regarding the house’s

security features:

Charles Brown would have you believe that this

is to protect people from burglary, that this set-

up is all over the place. In fact, it’s in the other

apartment that he owns. Well, where is the

documentary proof of that, ladies and gentlemen?

None. You just have Charles Brown’s word.

Brown's counsel objected, and the district judge sustained

the objection and instructed the jury to disregard the

remark.

* Having dispatched each of Brown’s individual assignments of

prejudicial error, we summarily reject his claim that the alleged errors

combined to deprive him of a fair trial.

App. 13

The second challenged remark concerned Brown’s

claim that he was merely present at the crime scene to

collect rent from his tenant:

And he tells you that he went in to collect the

- rent. Well, if he went to collect the rent, why

didn’t he take his rent receipt book with him?

You know why, ladies and gentlemen. Because

there is no rent receipt book, because he wasn’t

there to collect the rent, because there was no

tenant, becawse again, ladies and gentlemen,

other than Charles Brown’s word, there is no

proof of Anthony Wilson as a tenant. His name is

not on the utility bills.

The district court again sustained defense counsel’s

objection amd instructed the jury to disregard the state-

ment. The prosecutor then stated:

So you have to choose in whom youre going to

place your trust, ladies and gentlemen, and you

know in whom the defense placed their trust.

They embraced the testimony... .

Defense counsel interrupted the prosecutor with an

objection, which the court sustained.

None of these lines of argument was improper. Isler’s

“burden shifting” claim disregards the fact that Brown

testified at length and that all the defendants endorsed

Brown's testimony in their closings. “[W]hen a defendant

puts [his] credibility at issue by testifying, the prosecution

can comment on the implausibility of [his] testimony or its

lack of evidentiary foundation.” Boulerice, 325 F.3d at 86.

Here, the prosecutor merely called attention to the lack of

supporting evidence for Brown’s implausible assertions

and attempted to highlight the fact that rival accounts had

been presented to the jury.

App. 14

In addition to burden shifting claims, Isler also argues

that the prosecutor improperly placed her prestige as a

government officer behind the testimony of the police

officers. The challenged comment came on the heels of

suggestions by defense counsel that the officers’ testimony

(in particular Partridge’s) contained gaping inconsistencies

which were indicative of fabrication.

The prosecutor began by recounting that the officers

all remembered the significant matters the same way, that

the differences in recollection were trivial, and that the

jury should be more concerned if there were not small

variations in their testimony. She continued:

If Detective Partridge was so frustrated, if

they were all so intent on securing a conviction

against these Defendants, wouldn't they have

come up with a better story, ladies and gentle-

men? Why not put the keys to the doors of the

apartment on the key chain of one of the Defen-

dants? Why not put the drugs in the Defendants’

pockets? Why not tell you that they observed one

of the Defendants run out of the bathroom? Why

not tell you that they saw the three Defendants

together numercus times prior to June 3rd?

Ladies and gentlemen, that is how you evaluate

the credibility of that testimony. It has the ring

of truth. Conspiracies are secret. They happen

behind locked doors.

Defense counsel objected and moved for a mistrial. The

district court sustained the objections, instructed the jury

App. 15

to disregard the “ring of truth” comment, and took the

motions for mistrial under advisement.’

“A prosecutor improperly vouches for a witness when

she places the prestige of her office behind the govern-

ment’s case by ... imparting her personal belief in a

witness’s veracity or implying that the jury should credit

the prosecution’s evidence simply because the government

can be trusted.” United States v. Perez-Ruiz, 353 F.3d 1, 9

(1st Cir. 2003).

The challenged remarks do not constitute improper

vouching. First, arguing why a witness should be believed

or asking jurors to use their common sense in assessing

witness testimony is not vouching. See Id. at 10; Rodri-

guez, 215 F.3d at 123. Second, the prosecutor did not

express her personal views regarding the officers’ accounts

or imply that they should be believed because they were

government officials. See Perez-Ruiz, 353 F.3d at 10. Third,

the comments were a logical counter to the defense claim

of witness fabrication, and we have upheld such rejoin-

ders. See United States v. Wilkerson, 411 F.3d 1, 8 (1st Cir.

2005); United States v. Vazquez-Rivera, 407 F.3d 476, 483-

84 (Ist. Cir. 2005); Perez-Ruiz, 353 F.3d at 10.

E. Ambiguity in Cocaine/Cocaine Base Provisions

Brown argues that he should have received a lower

sentence under 21 U.S.C. § 841 under the rule of lenity.

Brown begins with the fact that a certain quantity of

“cocaine base” will trigger a far harsher sentence than the

same quantity of “cocaine, its salts, optical and geometric

* These motions were later denied.

App. 16

isomers, and salts of isomers.” Compare 21 U.S.C.

§ 841(b1(AMi)IT) & (BYiiTI) with 21 USC.

§ 841(b)(1)(A)Gii) & (B)(iii). From there he reasons that

because “cocaine base” and “cocaine” are chemically

identical and the substance “cocaine base” falls within the

extended definition of “cocaine” (“cocaine, its salts, optical

and geometric isomers, and salts of isomers”), the penalty

provision in 21 U.S.C. § 841 is fatally ambiguous because a

conviction for possessing “cocaine base” would appear to be

eligible for punishment under both the “cocaine” and

“cocaine base” penalty provisions. Therefore, Brown posits,

because the jury found only that he possessed “cocaine

base,” he is entitled to receive the statutory sentence

provided for distributing more than 50 grams of “cocaine,”

relying upon United States v. Brisbane, 367 F.3d 910 (D.C.

Cir. 2004). Brown again concedes that our review is for

plain error only.

We readily conclude that there was no plain error.

First, Brown’s claim that “cocaine” and “cocaine base” are

chemically identical is inaccurate. See United States v.

Robinson, 144 F.3d 104, 108-9 (1st Cir. 1998) (noting

differing chemical formulas); United States v. Barnes, 890

F.2d 545, 552 (1[st Cir. 1989) (“the term ‘cocaine base’

clearly defines a substance differing from other forms of

cocaine”). Second, this court has concluded that the term

“cocaine base” in Section 841(b) includes all forms of

cocaine base (not simply crack). See United States v.

Holding that, in the absence of proof the “cocaine base” that

defendant possessed was crack or another smokable form of cocaine

base (which Congress intended to punish more severely than “cocaine”),

defendant was entitled to be sentenced under “cocaine” penalty

provision. See Brisbane, 367 F.3d at 913-15.

App. 17

Medina, 427 F.3d 88, 92 (1st Cir. 2005); United States v.

Richardson, 225 F.3d 46, 49 (1st Cir. 2000); United States

v. Lopez-Gil, 965 F.2d 1124, 1134 (1st Cir. 1992) (opinion

on rehearing). See also Barnes, 890 F.2d at 553 (cocaine

base provision not unconstitutionally vague). In this case,

the government presented undisputed evidence that the

substance seized was cocaine base, and the jury so found.

There was no error in Brown’s sentence."

F. Booker

All three defendants argue that they are entitled to a

remand for resentencing under Booker. They all maintain

that the district judge’s comments at sentencing clearly

indicate that she would have imposed a lower sentence if

the guidelines were not mandatory. In addition, they

contend that drug quantity and the existence of their prior

convictions are facts that must be found by a jury. All

three concede that our review is for plain error only.

To establish a plain error under Booker, a defendant

must demonstrate (1) an error, (2) that is plain, (3) that

affects substantial rights, and (4) that seriously impairs

the fairness, integrity, or public reputation of judicial

proceedings. See United States v. Antonakopoulos, 399

F.3d 68, 77 (1st Cir. 2005). The first two prongs are met if

the district court treated the Sentencing Guidelines as

” As to Brown’s reliance on Brisbane, the clear or obvious error

prong is not satisfied where the district court declined to follow a case

from another circuit that concedes it is expressing a minority view and

is explicitly at odds with this circuit’s precedent. Cf United States v.

D’Amario, 412 F.3d 253, 256-57 (1st Cir. 2005) (no plain error if circuit

courts are split on issue).

App. 18

mandatory. Jd. Thus, we must determine if the defendants

satisfy the third and fourth prongs of the test.

In the sui generis circumstances of assessing the

appropriateness of a Booker remand under the plain error

standard, our cases have consistently held that a remand

is appropriate if the district judge has made comments in

the sentencing record indicating a reasonable probability

that she would have imposed a lower sentence if unshack-

led by the mandatory guidelines. See Antonakopoulos, 399-

F.3d at 81; United States v. Heldeman, 402 F.3d 220, 224

(1st Cir. 2005); Wilkerson, 411 F.3d at 10. As to prongs

three and four, “our principal concern in these Booker

‘pipeline’ cases is with the likelihood that the defendant

would have received a lesser sentence in a post-Booker

regime of advisory guidelines.” Heldeman, 402 F.3d at 224;