U.S. v. Tracy

• Decision Date: 05 January 1993
• Docket Number: 92-1461 and 92-1554,Nos. 92-1459,s. 92-1459
• Citation: 989 F.2d 1279
• Parties: 37 Fed. R. Evid. Serv. 562 UNITED STATES of America, Appellee, v. John L. TRACY, Defendant, Appellant. UNITED STATES of America, Appellee, v. John L. TRACY, Defendant, Appellant. UNITED STATES of America, Appellant, v. John L. TRACY, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1279

989 F.2d 1279

37 Fed. R. Evid. Serv. 562

UNITED STATES of America, Appellee, v. John L. TRACY, Defendant, Appellant.

UNITED STATES of America, Appellee, v. John L. TRACY, Defendant, Appellant.

UNITED STATES of America, Appellant, v. John L. TRACY, Defendant, Appellee.

Nos. 92-1459, 92-1461 and 92-1554.

United States Court of Appeals,

First Circuit.

Heard Jan. 5, 1993.

Decided March 29, 1993.

Certiorari Denied May 17, 1993.

See 113 S.Ct. 2393.

J. Michael McGuinness, by Appointment of the Court, with whom McGuinness & Parlagreco and John L. Tracy, pro se, were on brief for defendant.

F. Mark Terison, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., was on brief for U.S.

Before CYR, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

Defendant/appellant, John L. Tracy, was convicted in the United States District Court for the District of Maine of three counts of distribution and attempted distribution of lysergic acid diethylamide ("LSD") in violation of 21 U.S.C. § 841(a)(1) and § 846. Tracy also separately pled guilty to one count of failure to appear as ordered by the court, 18 U.S.C. § 3146(a)(1). Tracy was sentenced to 97 months on the distribution counts and a 24-month consecutive sentence on the failure to appear count. In a scattershot approach, Tracy raises a plethora of arguments challenging his conviction and the resulting sentence. Pursuant to 18 U.S.C. § 3742(b), the government appeals from the district court's refusal to enhance Tracy's sentence for obstruction of justice under U.S.S.G. § 3C1.1. We affirm Tracy's conviction, but vacate and remand for the district court to reconsider whether an enhancement of his sentence is warranted under § 3C1.1.

I.

Tracy was initially indicted in the District of Maine, in an indictment that was unsealed on October 4, 1990, for distribution of LSD in July 1989 and August 1990. On January 15, 1991, the district court empaneled a jury. However, the trial was continued on January 28, 1991, prior to the swearing of the jury, when Tracy's attorney became aware of a conflict involving a potential defense witness. One of the government's witness statements included the name of a present client of Tracy's attorney. Because of the potential conflict between the two clients, the court granted defense counsel's motion to withdraw. The court also granted Tracy a continuance of two weeks to decide whether to hire new private counsel or to accept a court-appointed lawyer. The court reminded Tracy that his speedy trial rights were waived during the period of continuance. On February 6, 1991, Tracy requested court-appointed counsel.

A superseding indictment, which changed the date of one of the LSD sales, was filed on February 26, 1991. Tracy's case was placed on the trial calendar for March 25. However, on March 12, Tracy moved for a continuance because he had not yet met with his new attorney. The court granted the continuance and later rescheduled the trial to begin on May 20, 1991.

A second superseding indictment, which added a new count charging Tracy with attempted sale of LSD on August 22, 1990, was returned in five counts on April 24, 1991. Another jury was empaneled on May 20, but it was not sworn. On the day the trial was to begin, Tracy's attorney asked for another continuance because Tracy had broken his leg and wanted a new attorney. After determining that the lawyer-client relationship had disintegrated, the court granted the attorney's motion to withdraw and the motion for a continuance. The court again explained to Tracy that his motion for a continuance stopped the speedy trial clock.

Tracy's trial was rescheduled for August 14, 1991. Tracy, however, failed to report by telephone to his pretrial services officer on August 12, and failed to appear for trial on August 14. When Tracy was arrested in Florida on August 28, he was carrying false identification and pretended to be someone else. Authorities returned Tracy to the District of Maine, and the district court rescheduled his trial. On September 17, the grand jury issued an additional single count indictment against Tracy charging him with failure to appear for trial.

Trial began in the LSD case on October 15, 1991. ¹ At the outset, the court instructed the jury to consider the five alleged offenses separately. The government's case was based primarily on the testimony of undercover agents and informants, as well as several tape recorded conversations with Tracy. The testimony and recordings revealed that on August 18, 1990, a cooperating individual named Russell Wright purchased 20 doses of LSD from Tracy at his cabin for $80. On August 20, Wright returned to Tracy's cabin and purchased 50 doses of LSD from Tracy for $150. The LSD purchased on both August 18 and 20 was on yellow blotter paper with black airplanes.

On August 22, Wright attempted a third purchase of LSD from Tracy at his cabin. Several agents from Maine's Bureau of Intergovernmental Drug Enforcement ("BIDE") testified that the purpose of this attempt was to flush out the source of Tracy's LSD by requesting a high enough number of doses that Tracy would not have them on hand. Wright therefore requested 200 doses. When Tracy replied that he had only 100, a BIDE agent instructed Wright not to complete the purchase. Wright, however, testified that he did get a look at the LSD and noticed that it was on the same yellow blotter paper with black airplanes.

Another cooperating informant, Curtis Elwell, testified about Tracy's alleged offenses in 1989. Elwell testified that Tracy supplied him with LSD, which Elwell in turn sold to a confidential informant on two occasions in July 1989. Elwell admitted that he was arrested for these sales and that his sentence was reduced from 60 months to 42 months for his cooperation with the government. The court did not allow Tracy to impeach Elwell with a fourteen-year-old drug conviction.

The government closed its case with evidence concerning Tracy's flight to Florida. This was offered to show consciousness of guilt. Over Tracy's objection, Eric Thompson, a United States Deputy Marshal from Florida, testified to Tracy's attempt to conceal his identity at the time of his arrest in Florida. At the conclusion of Thompson's testimony, the government rested. Tracy did not then move for acquittal.

Tracy took the stand in his own defense. He testified to his drug use, to the availability of drugs during his youth, and to the availability of LSD among Grateful Dead followers. Contrary to a tape recording of his conversation with Wright in which Tracy purportedly said that he had to "make something" for his LSD dealing, Tracy testified that he "was willing to just get [his] money back." Tracy further testified that he and his family were afraid of Wright because he seemed aggressive. According to Tracy and his step-daughter, who also testified, the family decided to sell Wright artificial LSD if he returned, in an apparent belief that Wright would then leave them alone. Tracy testified that on August 22, 1990, the LSD that he attempted to sell to Wright was fake and was on blue blotter paper. Tracy made no motion for acquittal after resting his case.

After the close of the evidence, the court again instructed the jury to consider each alleged offense separately. Thereafter, the jury found Tracy guilty of the three August 1990 LSD offenses, but acquitted him on the two July 1989 charges.

Following the above convictions, but before sentencing, Tracy, on November 7, 1991, entered a plea of guilty to the separate charge of failure to appear.

II.

A. Pretrial and Trial Issues

1. Joinder of Counts

Tracy contends that the district court abused its discretion when it refused to order separate trials for the 1989 and 1990 LSD distribution charges. Rule 14 of the Federal Rules of Criminal Procedure, which governs motions to sever, provides in relevant part the following: "If it appears that a defendant ... is prejudiced by a joinder of offenses ... the court may order an election or separate trials of counts, ... or provide whatever other relief justice requires." A district court's denial of a motion for relief from prejudicial joinder brought pursuant to Fed.R.Crim.P. 14 is reviewed only for abuse of discretion. E.g., United States v. Chambers, 964 F.2d 1250, 1251 (1st Cir.1992). Such a denial will not be reversed unless the challenger makes "a strong showing of prejudice." United States v. Gray, 958 F.2d 9, 14 (1st Cir.1992) (quoting United States v. Font-Ramirez, 944 F.2d 42, 45 (1st Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 954, 117 L.Ed.2d 122 (1992)).

Tracy contends that he was prejudiced in two ways. First, Tracy maintains that he was put in the untenable position of wishing to testify on the 1989 offenses while wanting to remain silent on the 1990 offenses. See United States v. Bronco, 597 F.2d 1300, 1302-03 (9th Cir.1979). However, as the magistrate noted in recommending denial of the motion to sever below, Tracy's allegations of prejudice were conclusory; they did not show with any particularity the nature of the claimed prejudice. To make the requisite strong showing of prejudice, a defendant must "present enough information--regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other--to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of 'economy and expedition in judicial administration' against the defendant's interest in having a free choice with respect to testifying." Baker v. United States, 401 F.2d 958, 977 (D.C.Cir.1968); Bronco, 597 F.2d at 1303 ("[a]n accused should show the specific testimony he will present about one offense, and his specific reasons for not testifying about others, to justify severance."). Because Tracy's claims of prejudice were conclusory, ...