Of the Northern District of California, sitting by *

designation.

United States Court of Appeals

For the First Circuit

No. 05-1826

UNITED STATES OF AMERICA,

Appellee,

v.

DUCAN FANFAN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

 Boudin, Chief Judge,

Torruella, Circuit Judge,

and Schwarzer, District Judge. *

Rosemary Curran Scapicchio for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D.

Silsby, United States Attorney, was on brief for appellee.

November 8, 2006
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BOUDIN, Chief Judge. The complicated journey of this

criminal case began with the indictment of Ducan Fanfan in 2003 on

one count of conspiring to distribute and to possess with intent to

distribute 500 grams or more of cocaine in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(B), 846 (2000). In a two-day trial conducted

in October 2003, a jury convicted Fanfan, who was thereafter

sentenced by the trial judge in June 2004 to 78 months in prison.

The sentence was well under the guideline level for the

amount of drugs attributed to Fanfan because the district judge,

acting in the period before United States v. Booker, 543 U.S. 220

(2005), deemed himself limited by Blakely v. Washington, 542 U.S.

296 (2004), to the 500 gram figure contained in the indictment and

the jury's verdict. On the government's appeal, the Supreme Court

reviewed the district court decision, and in concert with its

Booker decision, the Court then remanded Fanfan's case for

resentencing. Booker, 543 U.S. at 267.

The district judge resentenced Fanfan in May 2005 to 210

months in prison, treating the guidelines as advisory but

ultimately sentencing Fanfan within the guideline range that the

court found applicable. Fanfan now appeals, arguing that both his

conviction and the resentencing were flawed. We begin with

challenges to the conviction, then move to the sentence.

Fanfan's principal claim of error addressed to his

conviction is that certain evidence should not have been admitted.
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The contested evidence includes both out-of-court statements of codefendants and actions of Fanfan occurring after the main coconspirators (but not Fanfan himself) had been arrested. To

understand the evidence and its role requires considerable

background.

The indictment against Fanfan charged him with conspiring

from September 2002 to April 2003. The co-conspirators included

Vaughan Smith, Joe Ash, and Donovan Thomas, all of whom testified

for the government as part of plea agreements. With corroborating

detail, Thomas testified that starting in the summer of 2002 he

regularly purchased cocaine from Fanfan, who was based in

Massachusetts, and supplied it to Ash. Ash testified that he

supplied it to Smith, who was based in Maine. Ash also testified

that his sister and girlfriend sometimes made pick-ups from Thomas.

Both Smith and Ash described their own roles and actions

in terms consistent with Thomas' testimony, but neither of them

dealt directly with Fanfan or could testify to his role. The

closest connection Ash had to Fanfan was when Thomas told Ash that

"his man" had a car to sell. Ash gave Thomas $10,000 cash for the

vehicle. Fanfan accompanied Thomas when Thomas delivered the Lexus

to Ash, and Ash identified Fanfan at the trial as the man from whom

he purchased the car.

In late March 2003, agents arrested Smith, finding money

and drugs in his home, and on April 2, Smith arranged a controlled
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purchase from Ash, who was in turn arrested the next day with

drugs. Thomas was arrested later that same day when he traveled to

Maine to collect payment from Ash. At trial the government was

prepared to treat Thomas' arrest as terminating the conspiracy.

This is not necessarily so but, given the concession, we follow the

district court in treating what happened after Thomas' arrest as

post-conspiracy events.

Under arrest, Thomas made statements to the police

identifying Fanfan and admitting that he had been distributing

drugs for Fanfan since the summer of 2002. Thomas then paged

Fanfan, with the government recording the call, and ordered a

kilogram of cocaine and four and a half ounces of crack cocaine.

Thereafter, Thomas met Fanfan by prearrangement; Fanfan was

arrested, and police seized from his car 1.247 kilograms of cocaine

and 281.6 grams of cocaine base.

At trial, Thomas testified to the events just described

and tapes were played of the post-arrest conversations between

Thomas and Fanfan recording the ordering of the drugs and the

rendezvous arrangements between the two of them. The government

also offered the seized drugs in evidence. The district court

admitted all of the evidence but with a limiting instruction as to

out-of-court statements made by Thomas after his arrest.

In substance, the district court told the jury that

anything said by Thomas, out of court and after his arrest, could
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not be considered for its truth but only to provide context for the

jury's understanding of Fanfan's statements and actions; Fanfan's

own statements, of course, were party admissions not subject to a

hearsay objection, but the communications between Thomas and Fanfan

were cryptic, as is commonly the case in drug dealing. The

district court also told the jury not to consider the evidence of

events occurring post-conspiracy as evidence of any other crime,

but only as evidence to prove the charged conspiracy.

Fanfan first argues that the evidence of a major drug

transaction after the charged conspiracy had ended was "bad act"

evidence of conduct not itself part of the charged crime. Such

evidence is not admissible to show criminal propensity and must

have some other legitimate purpose (such as showing identity or

plan), Fed. R. Evid. 404(b); and, in addition, the evidence must be

excluded if unfair prejudice substantially outweighs the probative

value of the evidence. Fed. R. Evid. 403.

We will assume that these objections were properly

preserved, as it does not affect the outcome. The evidence of this

final transaction was undoubtedly potent: although Thomas' own incourt testimony of his pre-arrest drug dealing with Fanfan amply

supported Fanfan's conviction, Thomas was the only one who could

squarely identify Fanfan as the man who supplied the rest of the

chain. And since Thomas had a plea deal with the government and a

prior record, his in-court testimony was subject to impeachment.
E.g., United States v. Trenkler, 61 F.3d 45, 52 (1st Cir. 1

1995); United States v. Williams, 985 F.2d 634, 637 (1st Cir.

1993); United States v. Perry, 438 F.3d 642, 648 (6th Cir.), cert.

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The final, post-conspiracy transaction, in which Fanfan was seized

with drugs corresponding to Thomas' order, not only bore out

Thomas' earlier testimony but provided vivid evidence of Fanfan's

criminal endeavor.

However, this final transaction was not just some random

drug crime by Fanfan from which could be inferred a propensity on

his part to commit drug crimes and from which, in turn, a jury

could infer that he engaged in the earlier conspiracy charged in

this case. Here, the post-conspiracy crime was close in time to

the conspiracy as described by Thomas; the procedure used to

contact Fanfan and order the drugs corresponded to Thomas'

description of the conspiracy; and Fanfan's appearance at the

rendezvous with the drugs order completed the equation.

Thus, even if not part of the conspiracy because (unknown

to Fanfan) the conspiracy had ended, the final transaction

evidenced the modus operandi by which the conspiracy was carried

out, which in turn answered the question of the identity of the

lead perpetrator–-a purpose for which bad act evidence is allowed.

Fed. R. Evid. 404(b). The case law in this circuit and elsewhere

supports the view that modus operandi evidence can be admitted to

prove identity, despite Fanfan's attempt to distinguish some of the

cases on their facts.1
denied, 126 S. Ct. 2045 (2006); United States v. Anifowoshe, 307

F.3d 643, 647 (7th Cir. 2002); United States v. Sanchez, 988 F.2d

1384, 1393-94 (5th Cir.), cert. denied, 510 U.S. 878 (1993). 

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As for Rule 403, the disputed evidence was highly

probative. The final transaction was an integral part of a prior

pattern of behavior described by Thomas and, but for his arrest,

would have been part of the conspiracy between Fanfan and others in

the chain. It was not inflammatory evidence--just a vivid

depiction mirroring prior events to which Thomas could properly

testify. See United States v. Procopio, 88 F.3d 21, 30 (1st Cir.

1996). The risk that the jury would overvalue or misuse the

evidence was minimal.

Both the Rule 403 and the Rule 404 issues, as presented

in this case, involved judgment calls as to the application of

clear rules to clear facts. On such application-of-law judgments,

the district judge enjoys considerable latitude and will be

overturned only for abuse of discretion. Trenkler, 61 F.3d at 52.

In this case, the district court was not only within its discretion

but also clearly right in admitting the evidence.

Turning to a related but different claim of error, Fanfan

argues that the limiting instruction as to the use of this bad act

evidence was insufficient. The judge did caution the jury that it

could consider the post-arrest transaction only to assist it in

deciding whether the pre-arrest conspiracy had occurred and that it

could convict only for the conspiracy charged in the indictment and
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not for any other crime. Fanfan says that the jury should also

have been told not to draw the "propensity" inference.

So far as we can tell, Fanfan made no request for such an

instruction; while Fanfan maintains that he objected to the

instruction, the government disagrees and we search in vain for

evidence in the transcript of an objection. That is hardly

surprising: many defense lawyers would shrink from an instruction

that the jury should not count Fanfan's propensity for drug dealing

against him. Rather than erasing the risk that the jury would

misuse the bad act evidence, such an instruction could easily

invite the jury's attention to a quite natural inference.

Even had there been an objection, the absence of a

"propensity" instruction in this case could not conceivably have

affected the outcome of the trial and so would be harmless error,

if it were error at all. United States v. Olano, 507 U.S. 725, 734

(1993); United States v. Castellini, 392 F.3d 35, 52 (1st Cir.

2004). The permissible inference from the objected-to evidence in

this case lay on top of, but was far more powerful than, mere

propensity evidence: it strongly suggested that Fanfan was

continuing the same course of conduct that comprised the

conspiracy.

In a final brief challenge to the conviction, Fanfan says

that his constitutional right to a jury trial was trammeled because

the verdict form, after first asking for a general verdict of
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guilty or not guilty, added a contingent special interrogatory.

The interrogatory said that, if the jury convicted, it should then

determine whether the conspiracy encompassed 500 grams or more of

cocaine.

The question was asked because Apprendi v. New Jersey,

530 U.S. 466 (2000), required a jury determination of 500 or more

grams in order to increase the statutory maximum penalty from 20

years to 40 years. Compare 21 U.S.C. § 841(b)(1)(B), with id. §

841(b)(1)(C). Furthermore, at the time, it was uncertain whether

the Supreme Court was moving toward a requirement that guideline

enhancements, even within the statutory maximum, be based on jury

findings--a course Booker rejected by only a single vote after

Fanfan's conviction.

In some situations, special interrogatories or special

verdicts pose risks in criminal cases; for example, they can be

asked in a form that suggests through progressive steps a

particular outcome. United States v. Spock, 416 F.2d 165, 182 (1st

Cir. 1969). But we have not adopted any flat prohibition, and this

special interrogatory posed no such risk and had a permissible

purpose. There was no error, let alone plain error.

Fanfan's remaining arguments concern the sentence. As

background we note that, at the original sentencing in June 2004,

the district judge had, on a precautionary basis, made the ordinary

guideline calculations; only then did the judge eliminate upward
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adjustments, other than the 500 gram determination, because he

assumed that Blakely would be held to require jury findings based

on proof beyond a reasonable doubt as to guideline enhancements,

including drug quantity and relevant conduct.

The Supreme Court, of course, rejected this requirement

in Booker and remanded Fanfan's case for resentencing. Booker, 543

U.S. at 245, 267. On remand, the district court declined to

reexamine the factual determinations it had made at the first

sentencing to compute the guideline range; but the judge did

consider the computed guideline range as advisory and took note of

the statutory section 3553(a) factors as well. The result was a

sentence of 210 months, which is in the middle of the calculated

guideline range.

The numerous claims of sentencing error pressed on appeal

fall into several different categories. At the threshold, Fanfan

says that no resentencing should have been allowed. But the

Supreme Court expressly held that the government could seek

resentencing of Fanfan under the new post-Booker sentencing regime,

id. at 267, which was patently different from the approach that had

been taken by the district court; the Supreme Court imposed no

preconditions to resentencing.

The more interesting issues concern the district court's

calculations of drug amounts. At the original pre-Booker

sentencing, the district court had determined, in accordance with
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the pre-sentence report, the specific amounts of cocaine that

Thomas had supplied to Ash during the period of the conspiracy

including a seizure at Ash's arrest, all of which Thomas said had

been secured from Fanfan.

To this the court added, as relevant conduct, the

additional powder cocaine and crack cocaine seized from Fanfan at

the time of his arrest. Using the formula that treats crack

cocaine in a 100-to-1 ratio in relation to powder cocaine, the

powder cocaine and crack cocaine together corresponded to an

offense level of 34. Two more levels were added because Fanfan was

regarded as an organizer, leader or manager in a conspiracy.

U.S.S.G. § 3B1.1(c) (2003).

A sentencing court must make a reasonable determination

of drug quantity, United States v. Ventura, 353 F.3d 84, 87 (1st

Cir. 2003), cert. denied, 541 U.S. 980 (2004), but Fanfan suggests

no plausible basis for disputing the calculations of the amounts of

powder cocaine and crack cocaine attributed to him. Fanfan

suggests that regardless of the drug quantity attributable to the

conspiracy, he was entitled to a determination of the amount of

drugs fairly foreseeable as to him. The short answer is that Ash

said he got all his drugs from Thomas and Thomas said he got all of

his from Fanfan. See United States v. Colon-Solis, 354 F.3d 101,

103 (1st Cir. 2004).
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Fanfan does not dispute the amounts seized from him on

his arrest, but he does object to the other amounts estimated

during the life of the conspiracy. The PSR was reasonable in

estimating the 1.25 kilograms of cocaine powder for which Fanfan

was responsible. The probation officer used Ash's estimates of the

amount he sold to Smith as the amount attributable to Fanfan

(because Thomas was Ash's only supplier, and Fanfan Thomas' only

supplier). The probation officer did not "average" the amounts

based on the most and least sold in a transaction, see United

States v. Sepulveda, 15 F.3d 1161, 1196-99 (1st Cir. 1993), cert.

denied, 512 U.S. 1223 (1994), but instead reasonably used Ash's

estimates of per week sales and number of weeks at that level.

Fanfan next says that there is no proof that what the

district court found to be 281 grams of crack cocaine was crack

cocaine rather than cocaine base. As United States v. Robinson,

144 F.3d 104, 109 (1st Cir. 1998), explains, crack cocaine is a

form of cocaine base that is prepared for smoking and is chemically

identical to other forms of cocaine base, such as the paste from

which ordinary powder cocaine is produced. Under the guidelines,

the "crack" form of cocaine base is subject to greater penalties.

Id.

In this case Thomas ordered crack from Fanfan in the

final transaction, and both a local officer and a federal agent

identified the seized substance as crack cocaine based upon its
The transcript of the conversation in which Thomas ordered 2

the crack cocaine from Fanfan reveals no hesitation. Thomas said

"I wanna something hard too," to which Fanfan replied: "Oh okay."

When Thomas asked, "Can you um, I mean can you work with that, you

gonna hook me up?" Fanfan replied, "Yeah, I mean I wanna yeah." 

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appearance; typically, crack cocaine has a yellowish, rock-like

appearance. The district judge's findings are tested for clear

error, Robinson, 144 F.3d at 109, and the district court did not

err at all--let alone clearly err--by saying that the substance was

crack cocaine. We have previously held that "[l]ay opinion

testimony suffices to prove that a substance is crack." United

States v. Richardson, 225 F.3d 46, 50 (1st Cir. 2000), cert.

denied, 531 U.S. 1203 (2001).

Although (given the government's concession) the crack

cocaine was not formally part of the "conspiracy," the guidelines

required its consideration in sentencing if it was part of the same

course of conduct. U.S.S.G. § 1B1.3(a) (2003). The crack cocaine

was ordered by Thomas along with powder cocaine in the same manner

as he ordinarily ordered drugs from Fanfan; Fanfan delivered the

crack cocaine at the same time as the powder cocaine; and both

events occurred in very close proximity to the conspiracy whose

termination (by Thomas' arrest) was unknown to Fanfan.

Drug dealers often supply both powder and crack cocaine

depending upon what is ordered. Whether or not Thomas had

previously ordered crack cocaine, Fanfan supplied it without

hesitation for this final transaction. Under the guidelines and 2
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precedents, the crack was easily labeled as part of the same course

of conduct, U.S.S.G. §1B1.3 n.9; United States v. Barbour, 393

F.3d 82, 92 (1st Cir. 2004), cert. denied, 126 S. Ct. 212 (2005);

and assuredly there was no clear error in the trial court's

assessment. Id. at 92; see also United States v. Moore, 130 F.3d

1414, 1418-19 (10th Cir. 1997).

In the course of attributing the seized crack to Fanfan,

the district judge referred briefly to an earlier statement by the

federal agent; that agent had reported Thomas as admitting that he

had ordered crack from Fanfan during the conspiracy itself. Fanfan

says that he should have been allowed an evidentiary hearing to

cross-examine the agent about his statement and to cross-examine

Thomas in view of the fact that Thomas had not stated at trial that

he had ever purchased crack cocaine from Fanfan.

At sentencing, the district court is not directly bound

by ordinary rules of evidence and strict confrontation rules do not

apply, U.S.S.G. § 6A1.3; United States v. Lizardo, 445 F.3d 73, 88

(1st Cir. 2006), cert. denied, 2006 WL 2725918 (Oct. 30, 2006), but

under some circumstances considerations of fairness and utility

might require an evidentiary hearing to resolve a critical issue of

fact. United States v. Rodriguez, 336 F.3d 67, 70 (1st Cir. 2003).

This is not such an instance: in the present case, the crack

cocaine was unquestionably part of the same course of dealing,
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whether or not Thomas had purchased crack during the conspiracy

itself.

Moving to issues that are largely legal in character,

Fanfan says that the 100-to-1 ratio overstates the significance of

crack cocaine; but this is effectively a legal determination by

Congress and not one that a court may disregard. United States v.

Pho, 433 F.3d 53, 65 (1st Cir. 2006). Similarly, Fanfan's legal

claim that the guideline determinations had to be made by a jury

based on proof beyond a reasonable doubt has been rejected by the

Supreme Court in Booker. Lizardo, 445 F.3d at 89.

The guideline calculations were not treated as

determinative. The district court recognized that the guidelines

were only advisory, although entitled to significant weight, United

States v. Jiminez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006), and

the judge addressed other factors and explained why he chose a

sentence in the middle of the guideline range. Fanfan makes no

showing that the outcome was unreasonable. United States v.

Navedo-Concepción, 450 F.3d 54, 59 (1st Cir. 2006).

Finally, Fanfan argues that his sentence violates ex post

facto principles because the sentencing regime was changed to his

disadvantage after his crime was committed. No ex post facto

argument is available because Booker's changes were worked by

judicial decision and not legislation; Fanfan can only argue a due

process violation. We have discussed the relevant authority in
Cf. United States v. Jacobson, 503 U.S. 540, 550 (1992); 3

Sherman v. United States, 356 U.S. 369, 373 (1958); United States

v. Gamache, 156 F.3d 1, 11-12 (1st Cir. 1998); United States v.

Brooks, 215 F.3d 842, 846 (8th Cir. 2000).

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United States v. Lata, 415 F.3d 107 (1st Cir. 2005), and need not

repeat the discussion.

Any due process claim would also fail. United States v.

Pérez-Ruiz, 421 F.3d 11, 15 (1st Cir. 2005), cert. denied, 541 U.S.

1005 (2006). At the time Fanfan committed the crime, April 2003,

he faced a statutory maximum of 40 years. This was prior to both

Blakely and Booker, and the only cloud on a prosecutor's horizon

was Apprendi, which dealt with statutory maximums. Apprendi, 530

U.S. at 489. Fanfan's sentence is not higher than could

"realistically have been imagined." Lata, 415 F.3d at 112.

Finally, Fanfan says that the government improperly

"manipulated" both the amount and the kind of drugs ordered in the

final transaction in order to increase Fanfan's sentence. Almost

every controlled buy has the potential to increase a sentence.

United States v. Connell, 960 F.2d 191, 194 (1st Cir. 1992). The

question is whether the government's conduct was "outrageous" or

"intolerable" and rose to the level of "extraordinary misconduct."

United States v. Montoya, 62 F.3d 1, 4 (1st Cir. 1995).

Here, no pressure (e.g., threats or pleas) was placed on

Fanfan to supply the crack cocaine. Thomas asked for crack 3

cocaine, and it was readily and immediately supplied. Nor is this
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a case where the government provided opportunities for successive

escalating crimes as part of a sting operation. Cf. Connell, 960

F.2d at 194. Whether or not Fanfan had previously sold crack to

Thomas, he obviously had a source of supply and a willingness to

deal in it, and Fanfan has shown no overreaching by the government,

let alone extraordinary misconduct. Montoya, 62 F.3d at 4.

There are other scattered references to guideline errors,

but we have addressed all that appear significant. That the new

sentence is much longer than the old proves nothing; the old one

was constrained by a view of sentencing law from which the Supreme

Court has retreated. That the sentence is quite long is a result

of determinations made by Congress, which we are not free to

ignore.

Affirmed.