USCA1 Opinion

United States Court of Appeals

For the First Circuit
____________________

No. 94-2000

UNITED STATES OF AMERICA,

Appellee,

v.

HENRY LOMBARD,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]

___________________
____________________

Before

Torruella, Chief Judge,

___________

Stahl and Lynch, Circuit Judges.

______________

____________________

F. Mark Terison, Assistant United States

_______________
P. McCloskey, United
____________

States Attorney,

Attorney, with whom

was on brief,

for the

States.

Jane E. Lee, by appointment of the court, for appellant.

___________

Uni

____________________

December 15, 1995

____________________

LYNCH,
LYNCH,

Circuit Judge.
Circuit Judge.
______________

Henry Lombard,

Jr.

and

Hubert Hartley

Court in

1992 on

acquitted.

murders.

separately in the

charges of

murdering two

Afterward, Lombard and Hartley

co-defendants

federal

were tried

in

firearms

the federal

and

other

Hartley pleaded

district

charges

court found by a

had used

offense":

the

men.

Each was

were indicted as

court

arising

in Maine

out

of

on

the

guilty at mid-trial, but appellant

Lombard entrusted his fate to the jury.

At sentencing,

Maine Superior

He was convicted.

under the Guidelines,

the district

preponderance of the evidence

that Lombard

his illegally possessed firearm

to commit "another

the same murders of which he had been acquitted in

state court.

The resulting

mandatory term of life

_________

Guidelines sentence

in prison, which Maine law

was a

would not

have

required

murders.

even

had

defendant been

convicted

of

the

Lombard thus received a life sentence based on the

federal court's finding that it was more likely than not that

Lombard

had

acquitted.

felt

as

committed

The

the murders

sentencing judge

a matter

of law

that he

of

which

was greatly

had

he

had been

troubled but

no authority

to do

otherwise under the Guidelines.

Lombard appeals the mandatory life sentence and his

convictions.

stated later.

issue.

We affirm

the

convictions

for the

reasons

We address first the very troubling sentencing

Finding

that

this

is a

-22

case

in

which the

life

sentence

enhancement

is the

"tail which

wags the

dog" of

defendant's trial and conviction, thus raising constitutional

due process concerns, we hold that under section 5K2.0 of the

Guidelines

the district

thought it had

vacate the

not, to

court had

the authority,

consider a downward

life sentence and

remand for a

which it

departure.

We

determination of

whether a downward departure might be warranted in the unique

circumstances here.

Background
__________

On Thanksgiving morning of 1990,

Morris Martin and

Paul Lindsey, Jr. were murdered, each shot in the head as

lay

sleeping in

the living

room of

backwoods of Fairfield, Maine.

Hartley,

the half-brother

a small

the surrounding

in the

The cabin was owned by Hubert

of the

defendant

All four men had been living in the cabin

deer in

cabin

he

woods.

Tammy

Henry Lombard.

for a week to hunt

Theriault, Hartley's

girlfriend, had also been living in the cabin, along with her

eighteen

month old

daughter.

Hartley's child at the time.

She

was also

pregnant with

Theriault was a near-eyewitness

to the murders,

able to hear and observe much through a hole

in the floor of her upstairs bedroom.

Lombard and Hartley were

charges of

Court.

murder before

Each

defendant

tried separately on state

two juries in

testified in

-33

the Maine

his

Superior

own defense

and

claimed that the

and

other had committed

Theriault testified against

the murders.

Hartley

Lombard at Lombard's trial.

Both state trials resulted in acquittals.

One year

indictment in

Lombard

federal grand jury

the U.S. District Court,

with unlawful

abetting the

possession of

same, and

the aftermath

tried

later, a

of

jointly

in

the

charging Hartley and

a firearm,

with conspiracy charges

the murders.1

Lombard

federal

some respects from the

she gave earlier.

she did not

conversations

see the

She testified, as

district

relating to

court.

were

The

Her testimony

testimony and statements

follows, that although

murders being committed,

between Hartley

aiding and

and Hartley

prosecution's key witness was Tammy Theriault.

departed in

returned an

and Lombard

she did

just before

hear

and

after

the

gunshots

were

Thanksgiving morning,

fired.

Lombard

cabin from a morning hunt.

At

about

and Hartley

10

a.m.

returned to

on

the

Martin and Lindsey were asleep on

____________________

1.

Count

1 of

the indictment

with a multi-part
unlawfully

to

conspiracy with the following

objectives:

a firearm

and

aid

and

abet

and ammunition in

the

unlawful

violation of

18

922(g)(1); to cross state lines with intent to avoid

prosecution

or

proceeding
and

and Lombard

possess

possession of
U.S.C.

charged Hartley

avoid

giving

in violation of

transport

from

testimony

18 U.S.C.

Hartley's

cabin

in

1073;

criminal

and to remove

certain

evidence

of

Lombard's unlawful possession of a firearm and ammunition, in

violation of
with
U.S.C.

unlawful

18 U.S.C.

2232(a).

possession of

922(g),

aiding and abetting

Count 2

in violation

of 18

charged Hartley

with

Lombard in the unlawful possession

of a

924(e).

a firearm

charged Lombard

Count

firearm, in violation of 18 U.S.C.

-44

922(g)(1)-(2).

couches in the living room.

Hartley, seeing Theriault, told

her to go back upstairs because he and Lombard "had something

to do."

On returning to her room, she

Hartley,

"[I]f you don't shoot

both."

Next,

daughter, heard

exclamation,

Theriault,

him, I'm going

still

upstairs

five or six gunshots,

"I didn't

heard Lombard say to

think you

to shoot 'em

with

her

baby

followed by Lombard's

had the

guts to

do it."

Hartley boasted,

"I

showed you,

and added,

"I

Lombard and Hartley stuffed the victims' bodies

in

don't think he's dead yet.

garbage

Shoot him again."

bags, as Theriault

bedroom floor.

Theriault

didn't I?"

watched through the

was with

hole in her

Lombard and

Hartley as

they cleaned the cabin

of blood and other evidence,

the bodies temporarily

in the cellar.

two men were

Hartley's

attempting to move

car,

Thanksgiving

Theriault's

leftovers.

They

The next

and hid

day, as the

the bodies to the

family

arrived

sat visiting

trunk of

to

bring

in the

living

room, with one victim's body hidden in the trunk of Hartley's

car

outside,

accompanied

the

other still

in

the

cellar.

Theriault

Lombard and Hartley when they later went to dump

both bodies

Lombard

in a roadside

sold his

bog.

Marlin .22

victims' two hunting guns

She

was also present

caliber rifle

to a broker.

as well

Lombard

when

as the

and Hartley

were planning to flee from Maine to Massachusetts just before

they were arrested.

-55

Excerpts of testimony that Hartley

and Lombard had

given in their

state court murder trials were

into evidence.

These excerpts (including Lombard's own prior

testimony)

corroborated

established

much

that Lombard

of

Theriault's

owned a

Marlin .22

also admitted

account

and

caliber rifle

which he had brought to Hartley's cabin, that he loaded it on

the morning of Thanksgiving

with him to

Hartley

together

following

disposed of

Other

reason

go hunting

the

the

witnesses'

to

that morning, and

attempted

murders,

to

removed

bodies, and

testimony

be aware

Day, 1990, that he took

that he

firearm, that he nonetheless

clean

evidence

planned

could

that Lombard

the

of

to flee

established

the gun

that

bloody

and

cabin

the murders,

from

Maine.

Lombard

not lawfully

had

possess a

purchased the .22 caliber rifle

from

Tammy Theriault's

were recovered from the

brother, and

that the

bullets that

victims' bodies were consistent with

having been fired from a .22 caliber rifle.

Hartley

government's case.

jury

(without

pleaded

guilty

at

Lombard, however,

presenting

an

the

close

put his

affirmative

of

the

case to

the

case)

and

was

convicted on both Counts 1 and 2 of the indictment.

At Lombard's sentencing, the court applied a cross-

reference

governing

in

the

the

relevant

firearms

essentially provided that

provision

conviction

of

the

(Count

if Lombard's unlawfully

-66

Guidelines

2),

which

possessed

firearm had been used in the commission of a murder, his base

offense level (BOL)

on that conviction was to

by the same guideline applicable

be determined

to a conviction for murder.

The court determined that the firearm had so been used.

The

resulting

and

BOL

required a

term

Lombard was sentenced accordingly.

of

life imprisonment,

II

The Sentence
____________

Lombard

imposed by the

raises

two

challenges

district court.

to

He contends

the

sentence

that the

life

sentence was imposed in violation of his rights under the Due

Process Clause.2

He

also argues, to

no avail, that he

was

____________________

2.

As

preliminary

assertion that
issue

matter, we

reject

the defendant did not

for appeal.

The issue of

the

government's

properly preserve this

whether and in what way the

murders of which Lombard had been acquitted could properly be

considered
squarely

at

sentencing was

addressed

by the

adequately

district

presented

court.

As

to and

the court

itself stated:

The

key issue in this

is whether or
offense in

sentencing, of course,

not premeditated murder is the

connection with

unlawfully possessed. . . .

which the

object

firearms were

Resolution

of

difficult because

this

issue

of the fact

is

particularly

that both defendants,

Mr. Lombard and Mr. Hartley, were acquitted of

degree murder

charges

in

the state

court

first
. . . .

The suggestion made by counsel for Mr. Lombard

appropriately
deriving

is how

the

could

the

calculation

of

guideline in determining
be

calculated on

quite

object offense
the

the sentence

the basis of crimes

in

appropriate
in this

case

for which the

defendant has been acquitted albeit in state court?

And

that's

been troubling me

the central

core issue

that has

throughout this process since

-77

the

erroneously

denied

credit

under

the

Guidelines

for

his

acceptance ofresponsibility forthe firearms andflight crimes.

A.

Calculation of the Guidelines Sentence

______________________________________

Lombard received a life sentence

convicted felon

firearm

ostensibly for his unlawful

in violation of 18 U.S.C.

was sentenced to the

Lombard

court incorrectly

possession of a

922(g) and 924(e).3

statutory maximum of 60 months

conviction on the conspiracy

sentence.4

as a thrice-prior

He

for the

count, concurrent with the life

does not contend here

___

applied the Guidelines in

that the district

determining his

life sentence, but rather argues that the manner in which the

____________________

trial and

during

reviewing

the

the

presentence

presentence

conferences

report

and

and
the

transcripts.

3.

Section 922(g)(1) provides: "It shall be unlawful for any

person . . . who has been convicted in any court

punishable

by imprisonment

for

a term

of, a crime

exceeding one

year

. . . to ship or transport in interstate or foreign commerce,

or

possess

in

or

affecting

commerce,

any

firearm

or

ammunition; or to receive any firearm or ammunition which has

been shipped or transported in interstate or foreign commerce
[paragraph structure omitted]."
Section 924(e)(1) provides: "In the case of
violates section 922(g) of this title and has
convictions

a person who
three previous

by any court referred to in section 922(g)(1) of

this title for a violent felony or a serious drug offense, or

both, committed on occasions different from one another, such
person
not less

shall be fined

than fifteen years, and,

provision of
of, or

not more than

law, the court

grant a

$25,000 and imprisoned

notwithstanding any other

shall not suspend

probationary sentence

to, such

the sentence
person with

respect to the conviction under section 922(g)."

4.

Lombard has

conviction.

not appealed the sentence

on the conspiracy

-88

Guidelines, as applied by

its factfinding

the court, required it

and mandated the life

to conduct

sentence violated his

constitutional rights.

The

defendant's

specific

firearms

guideline

conviction

applicable

is

U.S.S.G.

to

the

2K2.1.5

Subsection (a)(2) of the 1990 version of section 2K2.1 sets a

BOL

of 12

922(g)

"if the

. . . ."6

subsection (c)(2)

defendant used

commission

2X1.1

resulting

above."

defendant is

The

of

convicted under

"cross-reference"

provision

section 2K2.1 directs

or possessed

18 U.S.C.

that "[i]f

the firearm in

of

the

connection with

or attempted commission of another offense, apply

. .

in respect

offense

level

U.S.S.G.

to

that other

is greater

2K2.1(c)(2)

murders as "another offense,"

than

offense, if

that

(Nov. 1990).

the

determined

Treating the

and finding by a preponderance

____________________

5.

Although the November 1993

in effect at the time

court applied the
post

version of the Guidelines was

of Lombard's sentencing, the

1990 version, apparently

facto concerns.

district

to avoid any

ex
__

See United States v. Aymelek, 926 F.2d

____

_____

___ _____________

64, 66 n.1

(1st Cir. 1991).

_______

The outcome (a

mandatory life

sentence) would not have been different had any later version
of

the

Guidelines

been

applied.

All

citations to

the

Guidelines are to the 1990 version, unless otherwise noted.

6.

An

unadjusted

BOL

of

12

(given

defendant's criminal

history category of VI) would have translated into a sentence

of 30-37 months.

However, because defendant was sentenced as

an

criminal

armed career

under 18

U.S.C.

924(e),

which

provides for a 15-year minimum, his total offense level could

not

have

been

any

lower

consideration of the murders.

That offense

level would

than

34,

See U.S.S.G.
___

even

-99

from

4B1.4(b)(3)(A).

have translated into

sentencing range of 262-327 months.

apart

a Guidelines

of the evidence that

the defendant had committed

offense, the court applied section 2X1.1, which

defendant's BOL to be

the

guideline

2X1.1(a)

offense

. . . ."

The

"object

offense" was

1990).

Finding

no

basis

responsibility credit, the

offense

career

level of

criminal

statutory

minimum

43.

under

of

level from

object

degree murder, to which a BOL of

2A1.1.

directed the

set at "[t]he base offense

for the

(Nov.

that other

43 attaches.7

for

awarding

district court

Because Lombard

18

15

U.S.C.

years, but

first

See U.S.S.G.
___

acceptance-of-

assigned a

total

was sentenced

as a

924(e),

no

U.S.S.G.

there

stated

was

statutory

maximum

applicable; thus

U.S.S.G.

5G1.1(a)

no reduction

(which

requires

Guidelines sentence to comply

the offense of conviction).

was

indicated under

adjustment

of

with the statutory maximum for

The defendant's final Guidelines

____________________

7.
the

The same result would obtain under the current version of

Guidelines.

The

November

1991

amendment to

section

2K2.1(c) created a specific provision for cases in which

underlying
death.

offense

See
___

conduct is

U.S.S.G.

App.

C,

found

to

amend.

have resulted
374.

The

If the defendant

or ammunition

used or possessed

in connection with

any firearm

the commission

or

attempted commission of another offense, . . . apply

. . .
(B)

if

death

resulted,

the

most

analogous offense guideline from Chapter

Two,

Part

A, Subpart 1

the resulting offense

(Homicide), if

level is

greater

in

cross-

reference, as amended, provides as follows:

(1)

the

than that determined above.

U.S.S.G.

2K2.1(c)(1)(B) (Nov. 1995).

-1010

sentence

was

a mandatory

U.S.S.G. Ch. 5, Pt. A

term of

life imprisonment.

(assigning life sentence to BOL

for all criminal history categories).

See
___

of 43

B.

The Life Sentence

_________________

The

raises

mandatory imposition of

questions

of

whether

intended by the Sentencing

followed

to

produce

Process Clause.

facts here

sentence here

result

was

strictly

Guidelines and whether the method

that

result

Our focus is

result was reached.

the

such a

a life

comports with

on the process

the

Due

by which

the

Lombard makes no claim, nor could he, on

that imposition

of a

life sentence

on him

(accompanied by due process) would itself be unconstitutional

under the Eighth Amendment.

957 (1991).

of

The life sentence

several doctrines

Harmelin v. Michigan, 501

________
________

U.S.

resulted from the convergence

in sentencing

law,

each individually

well accepted, and none of which individually is questionable

here.

But just as folk

wisdom recognizes that the whole is

often greater and different than simply the sum of its parts,

these

individual doctrines,

each reflecting

our criminal jurisprudence, in

combination to

erode rights

compromises in

this extreme case threaten in

that the Constitution

does not

permit to be compromised.

We take

has

no

right

as given that once

under the

Due

Process

convicted, a defendant

Clause

to have

his

sentencing determination be confined to facts proved beyond a

-1111

reasonable

(1986);

doubt.

United States
_____________

(1st Cir. 1994).

is

McMillan
________

generally

v. Gonzalez-Vazquez,
________________

477 U.S.

34 F.3d

79

19, 25

A sentencing court's operative factfinding

subject

evidence" standard.

v. Pennsylvania,
____________

only

to

"preponderance

See United States v. LaCroix,

___ ______________
_______

of

the

28 F.3d

223, 231 (1st Cir. 1994); United States v. Mocciola, 891 F.2d
_____________
________

13, 17 (1st

Cir. 1989);

437, 441 (1st Cir. 1989).

United States v.
_____________

Wright, 873
______

F.2d

But cf. United States v. Kikumura,

___ ___ _____________
________

918 F.2d 1084, 1102

convincing"

(3d Cir. 1990) (holding that

standard

applies

circumstances).

Nor

considering

the conduct

only

is

sentencing

of

formally charged or convicted.

Guidelines,

some sentencing

information

known

conduct.

1921,

to

in

which

"clear and

certain

court

limited

limited

the defendant

to

was

Even before the advent of the

courts

them,

took

including

into account

uncharged

See, e.g., Nichols

__________ _______

v. United States,
_____________

1928 (1994); Williams v.

________

New York, 337

________

any

relevant

114 S.

Ct.

U.S. 241, 246

(1949); United States v. Concepcion, 983 F.2d 369, 387-88 (2d

_____________
__________

Cir. 1992), cert. denied, 114 S. Ct. 163 (1993).

____________

The Guidelines were not intended to discontinue the

courts'

historical

practice

of

considering

the

relevant

circumstances of the defendant's real

circumstances were

States v. Jackson, 3
______
_______

873 F.2d at

conduct, whether those

specifically charged or not.

F.3d 506, 509 (1st Cir.

441; see generally

_____________

-1212

See United
___ ______

1993); Wright,
______

Stephen Breyer, The Federal

____________

Sentencing Guidelines and the Key Compromises Upon Which They

_____________________________________________________________

Rest,
____

17 Hofstra

Breyer noted,

pure

"charge

L. Rev.

1, 8-12

the Guidelines

offense"

(1988).

evince a compromise

system

in

determined based solely upon conduct

convicted, and

a "real

are

in

See
___

conduct of

the defendant

determinations,

indeed,

relevant

which sentences

aggravating factors surrounding the defendant's conduct.

sentencing court

all

are

of which a defendant is

offense" system, in

of

sentences

and

view

which

between a

mitigating

id.
___

fashioned

As now-Justice

may, therefore,

consider relevant

for purposes of

making Guidelines

even if he has

even if he has been

not been charged

acquitted of
_________

with

and

that conduct, so

long as the conduct can

evidence.

Cir.

See United States v.

___ _____________

1993)

(reasoning

reasonable doubt

of the

be proved by a preponderance

that

Carrozza, 4 F.3d 70, 80 (1st

________

failure

of

does not preclude proof

evidence),

of the

cert. denied,
____________

114

proof

beyond

by a preponderance

S. Ct.

1644

Jackson, 3 F.3d at 509; Mocciola, 891 F.2d at 17.

_______
________

(1994);

Resolution

of this case does not require the questioning of any of these

general

rules but does involve recognition that there may be

limits to their application.

Both

the

Supreme

recognized that the Due

Court

and

this

court

have

Process Clause itself imposes limits

on

the application of these doctrines

in extreme cases, and

we

must

in

interpret

the

Guidelines

light

of

those

-1313

constraints.

This court

Rivera, 994 F.2d 942 (1st

______

of discretion

left to

Linnaean categorizations

recognized

in

United States
_____________

Cir. 1993), that there is

the district

courts even

of the Guidelines.

v.

a range

within the

We hold, under

Rivera,
______

that the

district court

did have

discretion here,

which it thought it had not, to consider a downward departure

from the life sentence.

Accordingly, we remand.

1.

The Tail That Wags the Dog

__________________________

The

Supreme Court

generally endorsing

decisions on

rules that permit

sentencing, while

sentence enhancements

to be based on conduct not proved to the same degree required

to support a conviction, have

not embraced the concept

those rules are free from constitutional constraints.

contrary,

sentence

the

Court

has

cautioned

enhancement to be the

the substantive offense."

against

that

On the

permitting

"tail which wags

the dog of

McMillan, 477 U.S. at 88.

________

McMillan
________

statute that

five

years

involved

a challenge

imposed a mandatory minimum

for

preponderance of

defendant

the evidence

found

Clause.

See
___

consistently

prison sentence of

sentencing

approved

477

U.S.

sentencing

facts related

-1414

by

at

92.

schemes

to the crime,

possessed a

offense of conviction.

statute did not violate the

McMillan,
________

consideration of

a Pennsylvania

to have "visibly

firearm" in connection with his

Court held that the

at

to

The

Due Process

("[W]e

that

have

mandate

. . . without

suggesting

that

those

reasonable

doubt."

facts

must

(citation

be

omitted)).

proved

beyond

The Court

however, take pains to place limits upon its holding:

[The challenged
to

limit

statute] operates solely

the

sentencing

discretion in selecting

court's

a penalty within

the range already available to it without

the special finding of visible possession
of

firearm.

ante" for

[The statute]

the defendant only by

to five years

"ups the
raising

the minimum sentence which

may be imposed within the statutory plan.

The statute gives no impression of having
been

tailored

possession

to

permit

finding to

the

visible

be a tail which
______________

did,

wags the dog of the substantive offense.

_______________________________________

Id. at 88 (emphasis added).

___

Here,

The

in contrast,

consideration of

upstaged

his

the

conviction

the tail

murders

for

has wagged

at Lombard's

firearms

the dog.

sentencing

possession.

The

circumstances of this case that have combined to produce this

effect

raise

grave constitutional

concerns,

might

although each

doctrine

considered separately

not provoke

a second

thought.

Cf. United States v. Sepulveda, 15 F.3d 1161, 1195___ _____________

_________

96 (1st Cir. 1993) (circumstances that individually might not

warrant

appellate relief "may

debilitating effect"

"may sometimes

in the aggregate

and that a cumulation

have a logarithmic effect,

have a more

of circumstances

producing a total

impact

greater than

the arithmetic

sum of

its constituent

parts"), cert. denied, 114 S. Ct. 2714 (1994).

____________

-1515

The

effect here

penalty outside of

has been

to permit

the harshest

capital punishment to be imposed

not for

conduct charged

and convicted

but for

other conduct

as to

which there was, at sentencing, at best a shadow of the usual

procedural

protections such

beyond a reasonable doubt.

surely of the

full burden of

state court,

the

requirement

This other conduct

most serious sort, but exactly

which our jurisprudence

meet its

as

proof

murder

proof.

When

was

the sort as to

normally requires the government

the government failed.

in view of this

of

put to that

to

proof in

The punishment imposed

other conduct far outstripped in

degree and

kind the punishment Lombard would otherwise have received for

the offense

of conviction.

There was no safety valve, or so

thought the trial judge, to adjust the Guidelines sentence of

life

imprisonment

to assure

consideration

of

the penalty

imposed in light of the process followed.

raises

questions as to

And that, in turn,

whether Lombard received,

as to his

sentence, the process that the Constitution says was due.

While

that it is the

import,

we

concerns,

We

of these

concerns should

start with the

historically

the

been

very

archetype

treated

in

-1616

of

the

is of

be examined

paramount seriousness of

ostensibly "enhancing" conduct at issue.

represents

we stress

interplay amongst these concerns which

and none

isolation.

discuss individual

in

the

A charge of murder

conduct

that

Anglo-American

"has

legal

tradition

as

requiring proof

McMillan,
________

477

omitted).

Thus, a

U.S.

firearms charge

but

at

beyond

90 (citation

reasonable doubt."

and

quotation

rule structure that bars conviction

except on

proof beyond a

marks

of a

reasonable doubt,

then permits imposition of a life sentence upon proof of

murder by

effect, the

preponderance of

the evidence

lesser procedural protections to

attaches, in

the issue that

would naturally be viewed as having the greater significance.

That anomaly is heightened

in

which

the

"relevant

Guidelines

conduct"

factual

for

operated here.

guidelines

determinate increase in a

by the specific

that

simply

finding that a

call

certain

for

defendant's BOL based on specified

findings, see, e.g., U.S.S.G.

_________

two-level increase

Unlike

manner

in BOL

firearm was

2D1.1(b)(1) (calling

for drug

conviction upon

possessed), the

cross-reference

provision that was applied in this case, U.S.S.G.

2K2.1(c),

required the district court to calculate Lombard's

BOL as if
_____

his offense

of conviction

had been

murder.

See
___

U.S.S.G.

2K2.1(c), 2X1.1 (Nov. 1990).8

Particularly in light of

statutory

maximum for

the firearms

the absence of any stated

_____________________

offense, see

18 U.S.C.

__________________

924(e),

___

the cross-reference

to

the

first-degree

murder

____________________

8.

The current

version of the cross-reference

explicit, directing the court to apply,

resulted

from the

defendant's

offense

is even more

in cases where death

conduct, "the

most

analogous offense guideline from Chapter Two, Part A, Subpart

1 (Homicide)."

U.S.S.G.

2K2.1(c)(1)(B) (Nov. 1995).

-1717

guideline

essentially displaced
_________

the lower

that otherwise would have applied.

Guidelines range

As a result, the sentence

to be imposed for Lombard's

firearms conviction was the same

as

have been imposed

the sentence that would

murder conviction:

a mandatory

nominal characterization

considered in "enhancing"

term of

for a federal

life.

of the murders as

Despite the

conduct that was

or "adjusting" Lombard's

conviction, the reality is that

firearms

the murders were treated

as

the gravamen of the offense.

As the enhancing conduct

so

too was the "enhancement."

Lombard

in this case was serious,

Attribution of the murders to

operated not merely to ratchet up his prison term by

some fractional

increment, but

rather wholly to

remove the

defendant's sentence

transform it

parole.

from

into a life

the term-of-years

sentence without

That punishment represents "the

continuum

and

the prospect

of

second most severe

penalty known to the law," Harmelin, 501 U.S. 957, 996 (1991)
________

(Scalia,

J.).

sentence in

It

qualitatively

differs

resting upon a determination

from any

lesser

that the "criminal

conduct is so atrocious that society's interest in deterrence

and retribution wholly outweighs any considerations of reform

or rehabilitation of the perpetrator."

J.,

also
____

dissenting) (citation and

Helm v.
____

life sentence

Solem, 684 F.2d

_____

without parole

Id. at 2719 (Stevens,

___

quotation marks omitted); see

___

582, 585 (8th

differs

Cir. 1982) ("A

qualitatively from

-1818

sentence

for

a term

of

years" because

it

represents the

"total[] reject[ion] of rehabilitation as a basic goal of our

criminal justice system."),

short,

the

enhancement

at

aff'd, 463 U.S. 277

_____

issue not

duration of Lombard's sentence,

only

(1983).

increased

In

the

but placed his punishment on

an entirely different order of severity.

This

sentence

qualitative

imposed and the

otherwise have received as

difference

term of

between

years that

the

life

Lombard might

a prior offender (262-327 months)

implicates basic concerns of proportionality both between the

enhancement

and base

punishment as

sentence and

a whole.

alone, might not

troubling ones.

invites scrutiny

Even if these

rise fully to

significance, they

between the

The

concerns, considered

the level of

further distinguish

offense and

constitutional

this case

from less

comparative severity of the enhancement

of the

weight given

to factfinding as

to

ostensibly "enhancing" conduct (the murders) allocated to the

sentencing

lesser

phase, with its looser procedural constraints and

burden of

proof.

It

raises

the

danger

of

the

defendant's trial and conviction being turned into a means of

achieving an

imposition

end that

of

life

could not

sentence "enhancement"

federally unprosecutable murder.

other concerns

proportion

be achieved

directly: the

based

on

In its interaction with the

we describe, there is also an issue as to the

between

the

gravity

-1919

of

Lombard's

offense

of

conviction and the

sentence without

instances that

for

severity of

parole is

possession of

While

one

Amendment concerns9

may doubt

life

in most

be harsh punishment

a rifle,

whether

even by

a career

there are

lurking here, cf. Harmelin,

___ ________

997-1001 (Opinion of

If a

appropriate for murder,

sentence might appear to

the unlawful

criminal.

his punishment.

Eighth

501 U.S. at

Kennedy, J.), the harshness of the life

sentence in relation to

the offense of conviction highlights

the need for rigorous inquiry.10

Without

conduct

may

sentence, the

be

impugning

the

principle

that

considered

in

determining

prior state

acquitted

defendant's

court acquittal presents

another

concern

in

its interaction

here.

Lombard

put

the Maine

government to its proof on the charges of murder against him,

and a state court jury determined that reasonable doubt as to

his guilt persisted.

The federal prosecution followed on the

heels of the acquittal.

As the particular murders

at issue

____________________

9.

Interestingly, the

contains
penalties
offence."

an

explicit

and

Constitution of
proportionality

punishments

Me. Const.

resulting

shall

be

art. I,

question whether the Maine

the

the

State of

guarantee:

"[A]ll

proportional

9.

Thus,

Maine

to

it is

the

a fair

Constitution would have permitted

sentence here

if

Maine

had done

what

the

federal prosecution did.

10.

It

bears

sentence is not,
the Guidelines

emphasis that

the

perceived

standing alone, a basis

sentencing range.

severity of

for departing from

United States v. Jackson,

______________
_______

30 F.3d 199, 203-04 (1st Cir. 1994).

Here, the

magnitude of

the

sentence enhancement is

of concern only

when viewed in

its interaction with the other aspects of this case.

-2020

were outside the sphere

charging power as

of the federal prosecutor's criminal

to murder,11 Lombard was not

charged with

murder in the federal indictment; the murders themselves were

not

alleged by

the

government

to

be

an

object

of

the

defendants' conspiracy; and the

federal jury was required to

make no factual determination regarding the commission of the

murders.

the

Yet it

would ignore reality not to

federal prosecution arose out

murders,

and that

of and was

the prosecution

Sentencing

Guidelines would

murders at

sentencing.

recognize that

require

driven by the

was well aware

consideration

This reality was

that the

of

the

reflected in

the

prosecution's statement at the pre-sentencing conference that

"it

was

looking

quite clear

at a

from

the beginning;

life sentence."

The

Mr.

Lombard was

government, by

its own

____________________

11.

The

and

Hartley could

federal

government conceded

murder

at oral argument

not have

statutes.

been charged
See, e.g.,
__________

2113(e), 2118(c)(2); 21 U.S.C.

848(e).

that Lombard

under any
18 U.S.C.

of the
1111,

The murders did not

take

place

connection

on

as defined
the

federal

installation,

were

not

in

with the robbery of a federally insured bank or a

robbery involving
committed in

any

federally controlled substances,

the course of a
by federal law.

fact is that Congress

nor were

continuing criminal enterprise

Whether or not it

has chosen not

could do so,

to federalize the

state crime of murder in cases like Lombard's, and so has not

authorized reprosecution for murder
of separate sovereignties.
U.S. 187 (1959).

See
___

pursuant to the doctrine

Abbate v. United States, 359

______
_____________

Thus, the issue raised is not one of Double

Jeopardy, nor, strictly speaking, of the reach of the federal

power, but one of
is precluded
as applied,

Due Process: whether the sentencing

from considering that the Sentencing Guidelines

through

effectively punishes
there exists

court

the vehicle
the defendant

of

sentence

for conduct as

no statutory authorization

even to prosecute.

-2121

enhancement,

for the

to which
government

words, had intended

"from the beginning" that

consideration

of the murders would result in a life sentence.

Through the post-trial

under

a lesser

obtained

standard of

precisely

the

prosecutors attempted,

adjudication of the murders

proof, the

result

but failed,

that

attribution

of

the

the

to obtain.

prosecution may well have done better.

Guidelines

federal prosecution

Maine

state

The federal

The net effect of the

murders

to

Lombard

as

understood by the district court was to mandate imposition of

_______

a life sentence.

This

was the maximum

_______

that Lombard

could

have

received had he been

state

court.

See
___

(setting minimum

Indeed,

convicted of murder

Me. Rev.

Stat.

Ann. tit.

sentence of 25 years and

state

murder

conviction

584

A.2d

618,

621-22 (Me.

sentence

and reducing sentence

might

although

defendant "committed

1990)

to term

17-A,

1251

maximum of life).

something less severe than a life sentence.

Pierre,
______

in the Maine

have

yielded

See State v. St.

___ _____
___

(vacating

of 45

a brutal murder,"

life

years, where

the record

failed to "establish behavior at the outermost portion of the

range

of

cruelty

circumstances of

that

would

constitute

extreme cruelty").12

____________________

the

aggravating

In any event,

in no
__

12.

If

Lombard had

been convicted of

state court and received

murder in

a sentence of a

the Maine

term of years,

he

would have been eligible to receive credit against time to be

served under the "good
are

considerably

provisions.
(entitling

more

time" provisions of state

generous

similar

federal

Compare Me. Rev. Stat. Ann. tit. 17-A,

_______

1253(3)

any person sentenced to

than

law, which

a term of

more than six

-2222

circumstances under Maine law would Lombard have been subject

_____________

to a mandatory life sentence.

_________

See State v. Shortsleeves, 580

___ _____
____________

A.2d 145, 149-50 (Me. 1990); St. Pierre, 584 A.2d at 621.
__________

Although Lombard's firearms offense was the vehicle

by which

he was

brought into

system, the life sentence

finding

that

the

Characterized in

Guidelines and

the federal

criminal justice

resulted from the district court's

defendant

had

committed

other terms, through the

murder.

mechanisms of the

accompanying legal doctrines,

the sentencing

phase of the defendant's trial produced the conclusion he had

committed murder and mandated

but

without

the

criminal process,

reasonable

doubt.

imposition of a life sentence,

protections

which

normally

such as the requirement of

Given

the magnitude

of

attend

the

proof beyond a

the

sentence

"enhancement," the seriousness of the

relation

to the

mandatory

process

charge

offense

imposition

of

effectively

and

raises

allocation of

"enhancing" conduct in

of conviction,

the

life

overshadowed

serious

and the

sentence,

the

questions

seemingly

this summary

firearms

as

possession

to

the

the procedural protections attendant

versus sentencing.

proper

to trial

See United States v. Gigante, 39 F.3d 42,

___ _____________
_______

____________________

months

"to receive

a deduction

observing all rules of

18

U.S.C.

but less

than

days each

month for

the department and institution") with

____

3624(b) (permitting up

credit per year to

year

of 10

to 54 days

of good time

prisoners serving terms of more

life but

allowing

no such

than one
credit

persons serving a sentence for a crime of violence).

-2323

to

47 (2d Cir. 1994) ("[W]e agree that there is a constitutional

requirement of some rough proportionality between

of

the evidence of the

uncharged conduct and

[the sentencing] adjustment . . . .").

to think

of a better example

"enhancement" might

the degree of

We would be hard

of a case in

be described as

the weight

put

which a sentence

a "tail which

dog" of the defendant's offense of conviction.

wags the

McMillan, 477
________

U.S. at 88.

The convergence of circumstances and processes that

yielded Lombard's life sentence distinguishes this case

United States v. Mocciola,

_____________
________

and its progeny.

the defendant

U.S.S.G.

891 F.2d 13, 17 (1st

from

Cir. 1989),

Mocciola itself involved the attribution to

________

of an

acquitted firearms offense

2D1.1(b)(1)13

and

rejected the

pursuant to

contention

that

consideration of the acquitted conduct (under a preponderance

of the evidence standard) was unconstitutional.

McMillan, 477
________

Id. (quoting
___

U.S. at 91, and Wright, 873 F.2d at 441).

______

The

acquitted conduct considered in Mocciola, a firearms offense,

________

was well

within the sphere of

ordinary federal prosecution.

The

consideration of the acquitted conduct in Mocciola had a

________

____________________

13.

The defendant had pleaded guilty on a cocaine conspiracy

charge,
jury

but went to trial

and was acquitted

by the federal

on a firearms possession charge arising out of the same

course of conduct.

See Mocciola, 891 F.2d at 14.

___ ________

-2424

relatively limited effect, simply increasing

two offense levels (15 months).

In United States
_____________

1993),

cert. denied,
_____________

Patriarca's

appeal

which

raised

S. Ct.

the

1B1.3

Patriarca himself had not

been committed in furtherance of

had pleaded

guilty.

See id. at 15, 17.14

___ ___

v. Carrozza, 4 F.3d
________

114

conduct" under U.S.S.G.

the sentence by

1644

question

70 (1st Cir.

(1994),

defendant

whether "relevant

could include two murders of

been charged, but which had

the conspiracy to which

he

This court answered in the affirmative,

reversing the district judge's conclusion.

See id. at 80-81.

___ ___

Carrozza
________

supports

important respects.

the

analysis

here

in several

Although defendant Patriarca himself had

not been charged federally

with murder, at least one

of his

confederates had pleaded guilty to such a charge in a related

____________________

14.

At least two post-Mocciola

________

likewise
here.

view

on facts

dissimilar to

the circumstances

See United States v. Gonzalez-Vazquez, 34 F.3d 19, 23___ _____________

________________

26 (1st
level

decided

cases from this circuit were

Cir. 1994)

(upholding, after drug

sentence enhancement
of conduct

alleged

conviction, two-

under U.S.S.G.
in a

2D1.1(b)(1) in

dismissed firearms

charge);

United States v. Jackson, 3 F.3d 506, 509-10 (1st Cir. 1993)

______________
_______
(same, in view of uncharged conduct of which co-defendant was
acquitted).
Also, in
Cir. 1994), the

United States
_____________

v. LaCroix, 28
_______

F.3d 223

holding of Mocciola was restated

________

(1st

in dictum,

but the only issue was whether certain financial losses could
be attributed

to the defendant under

provision

U.S.S.G.

of

1B1.3(a)(1)

the "relevant conduct"

(June

1988).

The

defendant
conspiracy

had
that

deadlocked on
to

been

convicted

caused

those

as

losses,

the substantive counts.

participant
but

the

in

the

jury

had

The jury's inability

reach consensus on the substantive counts was held not to

preclude a
defendant

finding that the

losses were foreseeable

as a convicted co-conspirator.

to the

See id. at 230-31.

___ ___

LaCroix does not aid the resolution of this case.

_______

-2525

case.

See United States v. Patriarca, 807 F.

___ _____________
_________

Supp. 165, 185

(D.

there

Mass. 1992), vacated,

_______

had

been

no

Carrozza, 4 F.3d
________

acquittal.

Even

70.

more

Certainly,

importantly,

Carrozza's holding was based

________

on the explicit assumption that

consideration of the murders

would not necessarily result in

___

a life sentence.

In fact, the

uncharged

district court had refused to

consider

the

troubled

by the prospect of exposing the defendant to a life

sentence

on the

rejected

the

premise
_______

explaining that

violations

years each.
_____

basis

murders

of uncharged

of

the

sentencing

conduct.

district

Patriarca's offenses

carried statutory

See
___

in

of

Patriarca,

This

court's

court

concern,

conviction

RICO

maximum sentences of
_______

twenty
______

Carrozza, 4 F.3d at 81.

________

But even so,

the

panel was

careful to

might remain a basis

reserve decision

as to

whether there

for concern if the district

court were

to order Patriarca to serve consecutive twenty-year sentences

___________

on

each

of

his

three

RICO

equivalent of a life sentence.

convictions,

the

The court openly acknowledged

that it was troubled by this potentiality:

At least one member of the panel believes

that serious
arise

if

constitutional concerns may

the

defendant

the

sentence

on the ground of his connection

murder

equivalent

ultimately

receives

with a

for

of

which he

was

life

never

indicted, tried or convicted by a jury.

See id. at 81 n.9.

___ ___

practical

-2626

The situation hypothesized in Carrozza is closer to

________

the

one

we

face

here,

Lombard was acquitted of

_________

Nonetheless he received

sentence" based

with

added

amplifying

the murders by a state

not just "the

on attribution

of the

elements.

court jury.

equivalent of a

murders, but

life

a true

life sentence, and

sentence

a mandatory

one at that.

Further,

the

imposed may have been even more severe than what he

would have received had he been convicted in state court.

We

believe,

in

as

did

Carrozza, that
________

"at least

one

member

of

the life sentence imposed

upon the defendant

raises "serious constitutional concerns."

These

Court's recent

concerns

are

Id.
___

reinforced

by

the

Supreme

discussion in Witte v. United States, 115 S.

_____
______________

Ct. 2199 (1995).

The

when

enhancement

the panel"

sentence

Court framed its

punishment

for
___

the offense

punishment

for
___

the

can

of

enhancing

involved a Double Jeopardy

analysis by

properly

conviction,

conduct.

be

asking

viewed

as

as opposed

to

While

and not a Due Process

the

case

challenge,

its discussion is instructive here: if the life sentence that

Lombard received

for the
___

offense,

can realistically

murders, as opposed

the

be viewed

as punishment

to punishment for

constitutional

difficulties

the firearms

alluded

to

in

McMillan then come to the fore.

________

In

Witte, the
_____

marijuana charge,

defendant had

then received

-2727

been convicted

an enhanced prison

on a

term in

view of certain cocaine-related "relevant conduct" considered

at

sentencing.

Later, the defendant was prosecuted for that

same cocaine-related conduct.

grounds, arguing that

He objected on double jeopardy

he had already

been punished for

___

the

cocaine-related conduct by virtue of the sentence enhancement

following

the

marijuana

disagreed and held

conviction.

that the defendant

The

Supreme

Court

had been punished

in

the first prosecution only for the offense of conviction (the

___

marijuana

considered

charge),

the

even

though

the

cocaine-related conduct

sentencing court

in

had

calculating his

sentence.

Court

See
___

id. at 2207.
___

emphasized

offense of

that

the

conviction (the

statutory maximum,

sentence had

In so

concluding, however, the

sentence

for

the

defendant's

marijuana charge) had

and the "enhancement" to

merely fixed the

the defendant's

term of imprisonment

point closer to (but still below) that maximum:

The relevant

conduct provisions

Sentencing

Guidelines

sentencing

enhancement

the judgment
should receive

that a

. . .

accompanied

the
are

regimes evincing
offense

serious

sentence

within the authorized range

_____________________________
either

of

particular

a more

by

or

additional criminal activity.

if

carried a

it was

preceded

by

Petitioner
__________

does not argue that the range fixed by

_________________________________________
Congress is so broad, and the enhancing
_________________________________________
role played by the relevant conduct so
_________________________________________

at some

significant, that consideration of that

_________________________________________
conduct in sentencing has become "a tail
_________________________________________
which wags the dog of the substantive
_________________________________________
offense."
________
. . . .

McMillan,
________
We

legislature

hold
has

477

U.S.

that,

where

authorized

particular punishment range

___________________________

-2828

at

the

such

for a

88

given

crime, the resulting sentence within that

___________
range constitutes punishment only for the
_____
offense of conviction for purposes of the
double jeopardy inquiry.

Witte,
_____

115 S. Ct.

at 2208

(emphases added,

some citations

omitted).

This

situation

case

that Witte
_____

presents

makes

precisely

an effort

the

troubling

to distinguish:

the

applicable statutory sentencing range (fifteen years minimum,

no

stated maximum)

played

by

inordinately

the

is quite broad,

relevant

significant.

and the

conduct

The

effect

the

enhancing role

murders

is

of considering

the

murders was not just to fix Lombard's sentence at some higher

___

point within a particular range delimited by Congress for the

firearms offense.15

Instead, the

Guidelines, combined with

____________________

15.

This is

in striking contrast

co-defendant, Hartley.

to the case

After he pleaded guilty, Count

the indictment was

dismissed as to

motion.

BOL of 12 as to Count

Hartley's

of Lombard's

him on the

3 of

government's

1, with a criminal

history category of I, would have yielded a sentence of 10-16

months. The district court
was

subject to

2K2.1(c).
argument,

the

But,

cross-reference
as

Hartley

had the

the government

under Count 1, see 18 U.S.C.

___

likely

statutory
aiding

and

Hartley,
2K2.1(c)

informed

a five-year statutory
_________

he received after his plea.

Hartley

provision of

would

have

maximum contained
abetting

the

consideration
only had

U.S.S.G.

us at

oral

who did not qualify as a career criminal

benefit of

conviction

found that Hartley, like Lombard,

his

371, which is what

(Had Count 3 not been dismissed,

been subject
in

18

firearms
of

maximum on

the

the effect

from a base of 10-16 months to the

to

the

U.S.C.

924(a)(2)

for

Thus,

for

offense.)
murders

under

of increasing

ten-year
________

U.S.S.G.

his sentence

statutory maximum of five

years, even though Tammy Theriault's testimony indicated that

Hartley

shared at

least equal
_____

blame

with Lombard

for the

murders.

-2929

the

absence

required

the

of

stated

district

statutory

court

to

maximum,

essentially

determine Lombard's

base

offense level as if his offense of conviction had been first_____

degree

murder.16

See
___

U.S.S.G.

2K2.1(c).

This

comes

perilously close,

we believe,

to punishing Lombard

for the
___

ostensibly "enhancing" conduct, the murders.17

____________________

16.

Cases

from other circuits addressing the permissibility

of considering acquitted (or uncharged) conduct at sentencing

generally

have involved

increases

that were

only modest sentence

within a

increases, or

stated statutory

maximum, or

both, and so provide little guidance here.

See, e.g., United

_________ ______

States
______

(4th

v.

Hunter,
______

(affirming
based

firearms
defendant

acquitted

F.3d

imposition

F.3d 895,

2-level sentence

on an

Smith,
_____

19

of

enhancement on

firearms charge);

259,

261-62

(7th

statutory maximum

conviction

896-97

based

had committed

on

1994)

drug conviction
United States
_____________

Cir.

1993)

sentence
finding at

second degree

Cir.

of

v.

(affirming
5 years

sentencing

murder,

for
that

even though

defendant had been convicted only of involuntary manslaughter

in

state court);

424-26

(8th

consideration

United States
_____________

Cir.
of

1992)
uncharged

sentencing range on conviction

v. Galloway, 976
________

(en

banc,

property

7-5)
theft

F.2d 414,
(approving
to

enhance

for interstate theft from 21-

27 months
years),

to 63-78

months, where statutory

cert. denied, 113 S.

____________

v. Bronaugh, 895 F.2d 247,

________

maximum was

10

Ct. 1420 (1993); United States

_____________

250-52 (6th Cir. 1990) (affirming

increase of sentence for firearms conviction from range of 427

months to

uncharged

statutory

drug

Juarez-Ortega,
_____________

maximum

trafficking
866 F.2d

of

five years,

offenses);

747,

based

on

United States
______________

v.

748-49 (5th

curiam) (affirming increase of sentence

Cir. 1989)

(per

for drug conviction,

within statutory maximum, based on consideration of acquitted

firearms charge).

17.

The application of section 2K2.1(c) here might be viewed

as being

less

McMillan
________

and

like the
similar

sentencing statute
cases,

and

more

approved of
like

the

in

scheme

invalidated in Specht v. Patterson, 386 U.S. 605, 607 (1967).

______
_________
In Specht, the Court
______
convicted
maximum

under a
penalty,

held that where the defendant

sex offender
the

state

statute carrying
could

not

a 10-year

constitutionally

sentence him without a hearing (with appropriate

such as the

had been

protections

right to counsel and to cross-examine witnesses)

-3030

In

the aftermath

of Witte,
_____

this court

in United
______

States v. Rivera-Gomez, 67 F.3d 993 (1st Cir. 1995), recently

______
____________

noted

and

that the manner in

above

the sentence

which a sentence

that

is enhanced over

defendant would

receive is subject to constitutional limits:

[T]he

burgeoning

enhancers by Congress
Commission

as part

use

of

sentence

and the Sentencing

of the

catechism of

otherwise

punishment poses an
in

obvious danger that,

extreme circumstances,

the lagniappe

might begin to overwhelm the main course.

In

all

probability,

constitutional

limits

there
on

are

the

way

sentencing factors can be deployed in the

punishment of a substantive offense.

Id. at 1001.
___

There

is substantial reason

"enhancement" that produced

these limits.

in McMillan and
________

withheld

constitutional

"enhancement" that

defendant's

produced Lombard's life

is exactly the reason for

Court's reserve

its

that the

Lombard's life sentence exceeded

The convergence that

sentence, we believe,

for concern

in Witte when
_____

blessing

for

the Supreme

it carefully

sentence

would be a "tail which wags the dog" of a

offense

of

conviction.

That

troubling

hypothetical is the reality here.

____________________

under

separate

but

related

statute

that

permitted

imposition of a sentence of 1 day to life based on proof that

the

defendant posed a threat

Cf.
___

Galloway,
________

dissenting)

976 F.2d

(comparing

provision of U.S.S.G.

at

of bodily harm
441-42 (en

operation

of the

banc)

to the public.
(Bright, J.,

relevant

conduct

1B1.3(a)(2) (Nov. 1991) to the scheme

invalidated in Specht).
______

-3131

2.

Considering Departure: Outside

_______________________________
the "Heartland"
______________

Against this

the

background, we look

Guidelines themselves

government

urged at

are indeed

sentencing,

the constitutional issue.

U.S. 600,

so inflexible

or whether

different result, and if so, whether

first to whether

as the

they permit

that result would avoid

See United States v. Monsanto, 491

___ _____________
________

611 (1989); Edward J. DeBartolo Corp.

__________________________

v. Florida
_______

Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575
__________________________________________

(1988).

We hold that a sentence of life imprisonment was not

an inexorable outcome under the Guidelines, that this case is

within the scope of section 5K2.0 which provides flexibility,

and

that, under our

had authority

decision in Rivera,
______

to avoid any unfairness

the district court

in Lombard's sentence

through the mechanism of downward departure.

The principles governing downward

the

Sentencing Guidelines

departures under

were comprehensively

outlined by

this court in United States v. Rivera, 994 F.2d 942 (1st Cir.
_____________
______

1993),

and

we apply

its

premise of the Sentencing

. . .

carv[es] out

embodying

the

U.S.S.G. Ch.

994

F.2d

at

1, Pt. A,

here.

fundamental

Guidelines is that "each guideline

a 'heartland,'

conduct

947.

teachings

that

of

typical cases

guideline

describes."

intro. comment. (4)(b);

see Rivera,
___ ______

As the

each

a set

Sentencing

Commission

itself

recognized,

however, some

that make them atypical and

cases will

involve circumstances

remove them from the "heartland"

-3232

of

intro.

guideline's literal

comment.

(4)(b).

scope.

A case

U.S.S.G.

that

Ch. 1,

falls outside

guideline's heartland "is, by definition, an 'unusual

Pt. A,

of a

case'"

and therefore

a candidate for downward

Rivera,
______

994 F.2d

simply:

"Does this

at

947.

with

several

notable

exceptions

U.S.S.G.

grounds

Ch.

1,

not

else in

circumstances

grounds

or is

applicable here,

for

Pt.

the guidelines,

departure

A,

intro.

Guidelines themselves recognize that

no

is

been explicit that,

limit the kinds of factors,

mentioned anywhere

constitute

then,

Id. at 948.
___

Sentencing Commission has

"d[id] not intend to

not

basic question,

case fall within the 'heartland,'

it an unusual case?"

The

The

or upward departure.

specifically

for departure,

the case

in

it

whether or

that could

an

unusual

case."

comment.

(4)(b).

The

even if a case presents

identified

may still

as

permissible

be sufficiently

unusual to warrant it:

Circumstances that
from

the

may warrant departure

guidelines

provision cannot, by

pursuant

to

their very

this

nature,

be comprehensively listed and analyzed in

advance.

The controlling decision

whether and

as to

to what extent departure

is

warranted can only be made by the courts.

. . .

Any case

addition to

may

that

in
have

adequate consideration by

Commission.

factor

factors

those identified

not been given

the

may involve

Presence of

warrant

guidelines, under

departure

any

such

from the

some circumstances, in

the discretion of the sentencing court.

-3333

U.S.S.G.

provides

5K2.0.

that

The

even

commentary to section

where

considered individually,

finding

various

5K2.0 further

single

circumstances,

might be insufficient

to permit

that a case is outside the heartland of a particular

guideline, the presence of those circumstances in combination

might permit a different assessment:

The

Commission

possibility

does

of

an

that, because of a
characteristics
separately would
differs
"heartland"

or

not

foreclose the

extraordinary

case

combination of

. . .

circumstances

[that

not warrant departure],

significantly
cases

covered

from
by

the
the

guidelines in a
the

statutory

way that is important to

purposes

even though none

or

of the

of

sentencing,

characteristics

circumstances

individually

distinguishes the case.

U.S.S.G.

5K2.0,

in

short, do

See
___

Rivera,
______

comment. (Nov. 1995).18

not always

994

F.2d

mandate the

at

Guidelines cannot dictate how

949

The

Guidelines,

appropriate sentence.

("Ultimately,

. . .

the

courts should sentence in such

special, unusual or other-than-ordinary circumstances.").

Although

the

district

court

is

entitled

to

considerable "leeway" in its determination of whether a given

____________________

18.

Amendments

to

the

Guidelines

that

are

intended

to

clarify rather than change the Guidelines' operation, such as

_______

the 1994
be

amendments to the commentary

applied retroactively.

41, 47

See United States v. Doe, 18 F.3d

___ _____________
___

(1st Cir. 1994); see also LaCroix, 28 F.3d

_________ _______

n.4 (stating
"may

to section 5K2.0, may

that

clarifying amendments

to the

be taken into account retrospectively,

sentencing

court

. . .

but

also

on

at 227 &
Guidelines

not only by the

appeal"

(citations

omitted)).

-3434

set of circumstances renders a particular case "unusual," id.

___

at

951, this court

involving

has plenary review

interpretation

of

the

over legal questions

Guidelines

and

over the

district court's determination of whether it had authority to

depart

based on

its assessment

facts.

See id. at 951.

___ ___

Here, the

of the

district court did

relevant sentencing

not consider whether

departure would have been appropriate under U.S.S.G.

5K2.0.

At Lombard's sentencing hearing, the district court expressed

considerable

unease

imprisonment that

required

conduct.19

by

hearing that the

the

sentence

had resulted

the

The

at

from

Guidelines,

government

of

mandatory

its consideration,

of

asserted

Lombard's

at

Guidelines "leave this court

the

life

as

acquitted

sentencing

in essence no
__

discretion
__________

whatsoever
__________

imprisonment

that

sentence

[emphasis added]."

it lacked authority

life imprisonment.

the

to

The

[Lombard]

below

The district court thought

to impose any

sentence other than

court also did not consider

constitutional questions

life

raised by

the

whether

mandatory life

sentence might warrant a finding that this case falls outside

the

heartland

of

the

applicable

guideline.

Thus,

we

conclude, as did the court in Rivera, that the district court

______

____________________

19.

For example, the district court worried: "The problem is

that

th[is] scenario is very difficult for me to accept when

the

whole concept of our criminal justice system is based on

innocent until proven guilty, and when there is an acquittal,

there has been no proof of guilt."

-3535

erroneously

sentence

believed

it had

indicated by a

Guidelines and "did not

to

consider

realize that it had the

departure"

from the

in

of the

legal power

the

special

See Rivera, 994 F.2d at 953.

___ ______

The facts and circumstances

whole greater than the

to deviate

straightforward application

[downward]

circumstances presented.

no power

of this case present a

sum of its parts and

distinguish it,

from a constitutional perspective, from other cases that have

involved facially similar issues.

the perspective of the

The specific question from

Guidelines and under U.S.S.G.

is whether these features of the case

acquittal and the

any

state

sentence that

conviction;

conduct";

the

the

paramount

magnitude

disproportionality

conviction

fact that the federal

seriousness

of

sentence may exceed

the

of

the

of a

taken in

to

a murder

"enhancing

"enhancement";

and the

between the enhancement

the absence

offense of conviction

e.g., the state court

____

have attached

between the sentence

as well as

sentence; and

would

5K2.0

statutory

the

offense of

and the base

maximum for

the

combination, make this case

"unusual" and remove it from the "heartland" of the guideline

2K2.1)

that yielded

the mandatory

life sentence.

This

case is outside the "heartland."

The

2K2.1(c)

Sentencing

Commission

was undoubtedly

aware

provision might

in some

cases call

-3636

in

that the

writing

U.S.S.G.

cross-reference

for a defendant's

base

offense level to be determined by

governing murder.

But from

See U.S.S.G.
___

reference to the guideline

2K2.1(c)(1)(B) (Nov. 1995).

our "intermediate vantage point"

in the sentencing

process, we

try to place particular cases

perspective

of sentencing law," Rivera, 994 F.2d at 949.

______

seems

to

us

unlikely

that

envisioned the particular

in

this case culminated

the

within "a broader

Commission

It

could

have

combination of circumstances

that

in the mandatory

life sentence and

the corresponding institutional concerns.

Whether

by these

that their

under

or not constitutional concerns were raised

circumstances, as

we think they

combination here gave

U.S.S.G.

5K2.0.

That

are, we

the court power

the

application

conclude

to depart

of

the

Guidelines

that produced

the mandatory

life sentence

does

raise constitutional concerns only reinforces our conclusion.

This case

may be

"unusual"

one

2K2.1(c).

Commission

viewed

falling

virtually

outside

To decide otherwise

intended

that

2K2.1(c)'s

cross-reference

heartland
_________

case,

constitutional

issues.

United States, 501

______________

credit

produce

U.S.

the

by definition

heartland

would be to

the

sentences

129, 137-38

an interpretation of Fed.

could,

of

section

even

in

raising

cannot do.

section

assume that the

application

provisions

This we

of

as an

Cf.
___

serious

Burns v.
_____

(1991) (declining

R. Crim. P.

to

32 that would

-3737

effectively

impute

to

Congress

an

intent

to

produce

potentially unconstitutional result).

One of

the major

enacted by Congress

both to

goals of the

was to "assure

sentencing reforms

that sentences are

the offender and to society."

fair

S. Rep. No. 225, 98th

Cong.,

2d Sess.

39 (1984),

3182, 3222, quoted in

_________

__, No.

reprinted in
____________

1984 U.S.C.C.A.N.

United States v. LaBonte, __

_____________
_______

95-1538, slip

op. at

24 (1st

F.3d __,

Cir. Dec. 6,

1995).

That sense of fairness is better served here by giving effect

to the discretion preserved

in

U.S.S.G.

5K2.0.

If

to the courts by

a goal

of the

"avoid[] unwarranted sentencing disparities

with similar records

who have been

criminal conduct," 28 U.S.C.

mandating imposition

facts here

serves that

there has been no conviction

Guidelines is

to

among defendants

found guilty of

similar

991(b)(1)(B), it is difficult

to see how

goal.

the Commission

of a life

It

sentence on

is the conduct

the

for which

which raises the sentence

here

to a life term, and then only by means of a finding by a mere

preponderance

of the evidence.

sentence that

would have

murder.

murder

Yet a

life term is the same

been imposed for

a conviction

of

Giving unbridled effect here to the cross-referenced

guideline would,

treating like

inherent

conviction

in

instead of

furthering the

cases alike, ignore the

our

system

for murder

of

based

criminal

on proof

-3838

goal of

very real differences

justice

beyond a

between

reasonable

doubt and a

guns

were

firearms conviction enhanced

used

to

commit

the

preponderance of the evidence.

(characterizing

preponderance

same

consistent

with

the

murder

based

that

on

Cf. Gigante, 39 F.3d at 47-48

___ _______

standard

breaker" for evenly balanced evidence).

falling outside the heartland

by a finding

as

mere

"tie-

Viewing this case as

of section 2K2.1(c) seems more

sentencing goals

set

by

Congress.20

See LaBonte, __ F.3d at __, slip. op. at 24.

___ _______

The

Guidelines were not

meant to

have foreclosed

the district court from considering a section 5K2.0

departure here.

Cf. United States v. Cuevas-Gomez,

___ _____________
____________

downward

61 F.3d

749,

750 (9th

sentence

Cir.

1995) (noting

enhancement for

that automatic

certain defendants

16-level

under U.S.S.G.

2L1.2(b)(2) averts due process problems "precisely because"

the district court has discretion to consider departure based

on

the individual facts of the case).

Certainly, a downward

departure here would not be forbidden.

See id.; Concepcion,

___ ___ __________

983

F.2d at

considered,

389.

Had

the impact

acquitted murders

such

of giving

could have

downward

departure

sentencing weight

been tempered by

been

to the

the district

____________________

20.

Of course, where the text of an

clear, the sentencing court

applicable guideline is

may not rely upon its

own views

about the purposes of sentencing nor upon a personal sense of

inequity

to deviate

from the

Guidelines

sentencing range.

See, e.g., United States v.

_________ ______________
(1st Cir. 1994).

Talladino, 38
_________

F.3d 1255,

1265

Here the sentencing policies articulated by

Congress strengthen the analysis

of why the unusual features

of this case warrant consideration of a downward departure.

-3939

court's

fact-based, discretionary

would have been

judgment.

That judgment

informed by the background principle

sentence enhancement may

not function as a

that a

"tail which wags

the dog" of the defendant's offense of conviction.

The

adopted

approach

In

acquitted

of

alone, the

would have

engaged

base

v.

offense

Concepcion,
__________

to

that

conspiracy

charge.

defendant's guidelines

found

of

three

On

the firearms

sentencing range

Applying the cross-reference

that the

acquitted conduct,

level with

one

firearms charge but

2K2.1 (the same provision at

court had

in the

similar

has used the mechanism

was convicted on a

been 12-18 months.

in U.S.S.G.

district

a drug

is

to resolve a situation similar to this

United States
______________

codefendants (Frias)

charges

here

by the Second Circuit, which

of downward departure

one.

adopted

reference

issue here), the

defendant actually

and thus

to that

had

determined his

conduct.

The

result

was

24-level

upward

Guidelines sentencing range of

adjustment,

with

210-262 months.

final

983 F.2d

at

389.

The

Second

Circuit,

precedent, held that the

the

Guidelines,

rights

had not

and

settled

circuit

district court had properly applied

that

the

been violated

acquitted conspiracy charge.

discomfort with

reviewing

defendants'

by the

constitutional

consideration of

the

Yet the court expressed serious

the magnitude

of

-4040

the sentence

enhancement

that had resulted.

to

conduct

of

[Sentencing]

which

(2d

Cir.

circumstances

U.S.S.G.

"the

the

defendant

Commission intended

Id.;21 see also

___
________

29

It observed: "we doubt that, with respect

United States v.
_____________

1994).

The

of

case,

that

5K2.0 might

[district]

court

court

well have

apparently

so

was

acquitted,

extreme an

increase."

Monk, 15 F.3d 25,

____

concluded

downward

that

departure

been warranted.

[had]

not

the

26, 28-

in

the

under

Because

consider[ed]

whether such a departure was permissible," the Second Circuit

vacated the

sentence and remanded

for further

proceedings.

Id.22
___

____________________

21.

Concurring,

Judge

Newman expressed

his own

view more

sharply:

Under

the

rigor of

the

current

Guidelines, the

sentencing judge is required to assess

relevant misconduct,
and,

if

evidence

notwithstanding an acquittal,

persuaded
that

evidence of

by

such

preponderance

misconduct

of

occurred,

the
must

enhance the sentence according to the same scale of

severity that would have applied
been
after

convicted

of the

[defendant]

sentence that

he would

convicted! . . . When
law implementing

misconduct.

was tried

offense and acquitted,

had the defendant

for

. . .
the

Thus,

conspiracy

he faces virtually the same

have received had
the Guidelines and

them permit such a

he been
the case

result, it is

high time for both the Commission and the courts to

give

serious reconsideration to the decisions that

underlie this outcome.

983 F.2d at 395 (Newman, J., concurring) (paragraph structure

omitted).

22.

On remand, the district court determined that a downward

departure

was

defendant to
affirmed.

indeed

appropriate

a term of

resentenced

the

This new sentence

was

Frias, 39 F.3d 391, 392

_____

(2d

144 months.

See United States v.

___ _____________

and

-4141

On

the

Second

the facts here, we are not as confident, as was

Circuit

in

Concepcion,
__________

that

the

sentence

enhancement

at issue

share the doubts

Commission

passes constitutional

of the Second

could have

muster.

Circuit that the

foreseen the

kinds

We do

Sentencing

of circumstances

which in this case have coalesced to produce a mandatory life

sentence,

downward

and

we

agree

departure

that

in

under U.S.S.G.

these

circumstances,

5K2.0

was

within the

court's discretion.

This case presents

not

now susceptible

Our

concerns have

conduct

calling

of articulation through

arisen from

for

offense

with

a situation

the challenged

itself very serious conduct,

the

difficult and delicate

which

issues,

general rules.

where acquitted

sentence

increase

is

substantively more serious than

defendant

was

charged,

where

consideration

increase23

sentence

of

that

conduct

in the

sentence

that would

have

resulted

in

an

(including possibly

been imposed

for a

enormous

beyond the

conviction),

where the ultimate sentence is itself enormous, and where the

____________________

Cir. 1994)

(per

curiam),

cert. denied,
____________

115

S.

Ct.

1433

enormous

is a

(1995).

23.

Whether

matter
ratios,

of

an

degree,

years,

not resolved

sentence is
simply

percentages, or the like.

deny the real

from one

increase in

even

though

each

the

labels of

For example, no one would

difference between an

year to three years

by

increase of a

sentence

and an increase from

20 to 60

represents

percent.

-4242

an

increase

of

300

judge

is seemingly mandated to impose that sentence.

situation

to and

increases the risk that what the judge is required

in fact is

convicted

Such a

offense

sentencing the

as

directly for conduct as

enhanced

defendant for is

by

relevant

not the

conduct,

to which the defendant has

not been

charged, tried by

a jury,

reasonable doubt.

See Rivera-Gomez, 67 F.3d at 1001.

___ ____________

The concerns

nor convicted on

which

the district

proof beyond

court

but

expressed

here

are valid, and

we have tried to

those concerns, and forcefully

this is an extreme case.

so.

state the reasons for

But we also

stress that

Absent the special circumstances we

have highlighted here, no comparable concerns would be raised

by cases involving even

sizeable sentence increases based on

an

of

uncharged

Castellone,
__________

acquitted

firearms offense, see

___

commission of

of

drugs,

see
___

United States
______________

v.

985 F.2d 21, 24 (1st Cir. 1993), an uncharged or

Vazquez, 34
_______

States
______

quantity

F.3d

an

19, 25

United States
_____________

(1st Cir.

unchargeable

1994), the

state

offense,

v. Gonzalez_________

defendant's

see
___

United
______

v. Carroll, 3 F.3d 98 (4th

_______

Cir. 1993), or any number

kindred sentence enhancements.

The outcome we adopt here

should

not

be

understood

constitutional or departure

as

an

invitation

to

issues in usual cases

based

on

or

involving

sentence

enhancements

conduct.

This is an unusual and perhaps a singular case, at

-4343

uncharged

litigate

acquitted

the boundaries of constitutional sentencing law, and does not

provide an open door.

Because the

district court did

not recognize

its

authority to consider whether a downward departure would have

been

appropriate, we

remand for

953;

Lombard's

further proceedings.24

United States v. Castiello,

_____________
_________

1990)

(remanding

erroneously

guidelines

(1991);

Cir.

vacate

for

thought

had no

sentencing range),

sentence

See Rivera, 994

___ ______

915 F.2d 1,

resentencing

it

life

where

power

to

and

F.2d at

5-6 (1st Cir.

district

depart

cert. denied, 498

_____________

court

from the

U.S. 1068

cf. United States v. Garafano, 61 F.3d 113, 116 (1st

___ _____________
________

1995)

(appellate courts

have

broad

power to

"adapt

mandates to the particular problem discerned on appeal").

C.

Acceptance of Responsibility
____________________________

Lombard's claim that the district court erroneously

refused

to award

responsibility

Lombard

has

acceptance

3E1.1(a).

him

under U.S.S.G.

not met

of

sentencing credit

his

Review

3E1.1(a) is

burden

responsibility

for acceptance

for

of clearly

his

of

without merit.

demonstrating

offense.

U.S.S.G.

of the adequacy of the defendant's proof

is only for clear error.

See United States v. Ocasio-Rivera,

___ _____________
_____________

991 F.2d 1, 4 (1st Cir. 1993).

____________________

24.

The government agreed at

oral argument that if

we were

to find that the district court erroneously believed

that it

lacked

authority to grant a downward departure, a remand for

resentencing would be the proper remedy.

-4444

Lombard appears to contend that prior incriminating

statements made

by him,

e.g., his admissions

____

at his

state

trial that he owned the .22 caliber rifle and helped to clean

up the

cabin after the murders,

demonstrate his "acceptance

of responsibility."

Hardly so.

These

statements were made

to defend against state charges and cannot plausibly be taken

as warranting

The

making

a sentence

of an

more, establish

States
______

reduction under

incriminating

acceptance

v. Wrenn, 66 F.3d
_____

statement

cannot, without

of responsibility.

1, 2-3 (1st

incriminating information

section 3E1.1(a).

to

Cf.
___

United
______

Cir. 1995) (divulging

government informant

did

not

establish eligibility for sentencing leniency under 18 U.S.C.

3553(f)).

Application note

cautions

that

responsibility

in

most

credit

defendant who puts the

2 to

section 3E1.1

circumstances,

"is

not

the

intended

specifically

acceptance-of-

to

apply

government to its burden of

to

proof at

trial by

denying the essential factual elements of guilt, is

convicted, and only then admits guilt and expresses remorse."

U.S.S.G.

3E1.1, comment. (n.2).

that much:

the record

admission

of guilt

Lombard has not even done

discloses not even

or remorse with

charges.

III

The Conviction
______________

-4545

a post-conviction

respect to

the federal

Lombard claims that the district

number

of trial

errors

Considering each

that affected

claimed misstep

court committed a

the jury's

in turn, we

verdict.

conclude that

there was no reversible error.

A.

Admissibility of Hartley's Former Testimony

___________________________________________

Excerpts of Hartley's prior testimony from his

state

murder

admitted

former

into

trial

and

evidence.

testimony

was

from Lombard's

Lombard

state

contends

inadmissible hearsay,

trial

own

were

that Hartley's

and

that

its

admission violated the Confrontation Clause.

The

trial court's evidentiary rulings are reviewed

for an abuse of discretion.

F.2d

1458,

(1992).

magnitude

beyond a

1467

Any

See United States v. Abreu,

___ _____________
_____

(1st Cir.),

properly

cert. denied,
_____________

preserved

requires reversal

reasonable doubt.

error

unless

503

of

shown

952

U.S. 994

constitutional

to

See Chapman v.
___ _______

be

harmless

California, 386
__________

U.S. 18 (1967).

1.

Hartley's Prior Testimony from

_______________________________
Lombard's
State
_____________________
Trial
_____

Approximately 60 pages

Lombard's

state trial

of Hartley's testimony from

were admitted,

containing statements

about Lombard's ownership of

the .22 caliber rifle; cleaning

the cabin of blood; disposal of the bodies; Lombard's sale of

firearms to a

broker; and Hartley's

and Lombard's plans

to

-4646

flee.

the

Hartley had also

testified that Lombard

told him on

morning of the murders that Hartley "didn't have to take

no

shit

from nobody";

Thanksgiving morning

sleeping on

and

that

saw Martin

couches in the

and

and Hartley

Lindsey (the

living room of

that Lombard had, after the

Hartley and Theriault if

to

Lombard

that

victims)

Hartley's cabin;

murders, threatened to kill

they did not "stick" to

tell police, if questioned,

on

that they had

their plan

last seen the

two victims on the Wednesday before Thanksgiving.

Hartley's

trial was

the

prior

admitted under

hearsay

rule,

see
___

testimony

from

Lombard's

the former testimony

Fed.

R.

Evid.

exception to

804(b)(1),

provides:

The

following [is]

hearsay

rule

if

not excluded
the

unavailable as a witness:

by the

declarant

state

is

which

(1)

Testimony

another

given

hearing

as

of

the

witness
same

different proceeding, . . . if
against

whom

offered

. . .

the
had

similar motive to
by

direct,

testimony
an

or

the party
is

now

opportunity

and

develop the
cross,

at

or

testimony
redirect

examination.

The other

conditions clearly being

met, the

only

question is whether Lombard had "similar motive" at his state

trial

to

"develop"

Hartley's

testimony

through

cross-

examination.

offered

The

party

must

have

against

had

whom

the prior

similar,
_______

-4747

not

testimony

is

necessarily

an

identical,
_________

motive to

prior proceeding.

317, 326

See
___

develop the

adverse testimony

United States v.
_____________

(1992) (1992) (Blackmun, J.,

Salerno, 505
_______

concurring).

Lombard faced both liability as to murder and as to

accomplice

in the

U.S.

Because

being an

to murder under Maine law, he had a very forceful

interest at his state trial in attacking Hartley's testimony,

in order to discredit his account of the actual killings, the

concealing of evidence and the attempt to escape prosecution.

This interest

could hardly

federal trial, see

___

914-15

United States
_____________

(2d Cir. 1993) (en

extent it related

have been

any

stronger at

v. DiNapoli,
________

8 F.3d

the

909,

banc), and the

testimony, to the

to the events preceding

and following the

murders, was properly admitted.

Hartley's

prior

testimony

from

Lombard's

concerning the .22 caliber rifle presents a different

issues.

real

set of

In contrast to the federal trial, Lombard had little

incentive

at

his

state

statements concerning possession

But Lombard himself

direct
______

trial

trial

attack

or ownership of

admitted during
________

examination at his

to

the course

state trial that

Hartley's

the rifle.

of his

own

the .22 caliber

rifle belonged to him.

evidence,

owned

Furthermore, other properly admitted

including Tammy Theriault's testimony that Lombard

the rifle, strongly

corroborated Lombard's admission.

Thus, under the circumstances

presented here, we believe any

-4848

error arising from the admission of this portion of Hartley's

prior testimony was harmless beyond a reasonable doubt.

Admission

Lombard's state

Clause.

See
___

prosecutions,

confronted

trial

U.S.

but

declarant's

Hartley's

did

Const.

violate

amend.

testimony

the

VI

does

witnesses against

not

prior testimony

requiring only

proscribe

against

that the declarant be

the prior

testimony sought

'indicia

of reliability,'"

firmly rooted

not

former

hearsay exception."

by

criminal

right . . . to be

The Clause

admission

a criminal

of

defendant,

"unavailable" and that

to be admitted

e.g.,
____

all

him.").

the

from

Confrontation

("In

the accused shall enjoy the

with the

restricts

of

"bear[] adequate

"fall[ing]

See Ohio
___ ____

within

v. Roberts, 448
_______

U.S. 56, 65-66 (1980).

The prosecution established that Hartley was indeed

"unavailable,"

trial was

rule

and his former

within the firmly-rooted exception

carved out

for

prior trial

subjected to cross-examination.

156

U.S. 237 (1895)

admissible

upon retrial

'indicia

testimony

of

if declarant

at 67-73.

reliability'"

Confrontation Clause violation.

(citation omitted); Barber

______

Lombard's state

to the hearsay

that has

been

See Mattox v. United States,

___ ______
_____________

(holding that prior

see also Roberts, 448 U.S.

_________ _______

"sufficient

testimony at

trial testimony is

becomes unavailable);

That testimony bears

that

there was

See Roberts, 448 U.S.

___ _______

no

at 73

v. Page, 390 U.S. 719, 722 (1968)

____

-4949

(dicta)

("where

witness

is unavailable

testimony

at previous judicial

defendant

which was

subject

and

has

given

proceedings against the same

to cross-examination

defendant," his confrontation rights are satisfied).

by

that

2.

Hartley's Prior Testimony from

_______________________________
His Own State Trial
___________________

Approximately two pages of Hartley's testimony from

his

own
___

state

Hartley's

murder

statement that

trial

he knew

prison for eight years, and a

at a sidebar conference

to testify that he

admitted prior

relevant to

admitted,

containing

that Lombard had

been in

statement by Hartley's counsel

_______

indicating that Hartley was prepared

believed that Lombard "was in

burglaries, escapes, and

evidence,

were

this sort of

to Hartley's

the government's

prison for

thing . . . ."

This

change of

plea, was

charge that Hartley

aided and

abetted unlawful firearms possession by a convicted felon.

Although

this

former

testimony

was

admitted as

statements

by

a co-conspirator

furtherance of the conspiracy,

during

the

course and

in

a problematic ground, we find

no grounds for reversal.25

____________________

25.

The co-conspirator

exception could not

the

former

because

testimony,

the

have applied to

conspiracy

had

been

terminated at least by the date that the co-conspirators were

arrested.

See United States v. Palow,

___ _____________
_____

Cir. 1985) ("[I]t

arrest

statements

is beyond doubt that

were

not

made

in

777 F.2d 52, 57 (1st

the challenged postfurtherance

conspiracy."), cert. denied, 475 U.S. 1052

_____________
Krulewitch v. United States,
__________
_____________
made

after

objectives of

of

the

(1986); see also

________

336 U.S. 440 (1949) (statements

conspiracy

-5050

have

failed are

not

Lombard failed properly

to preserve his

arguments

for appeal.

He posed only a general objection by a motion in

__

limine, but
______

made no comparable

was

not enough.

(1st

Cir. 1992)

contemporaneous

objection at trial.26

See United States

___ _____________

("A

motion in

objection

at

That

v. Reed, 977 F.2d 14, 17

____

limine without

trial

. . .

is

subsequent,

ordinarily

insufficient to preserve an evidentiary ruling for appeal.").

No prejudice resulted, in any event, from admission

of

this evidence.

See United States

___ _____________

v. Olano,
_____

113 S. Ct.

____________________

admissible under the co-conspirator

Lombard
state

was neither
trial

present

and had

no

exception).

nor represented

opportunity

Also, since
at

Hartley's

to cross-examine

him

there, the testimony was not admissible under Rule 804(b)(1).

Admission of the

sidebar statement by Hartley's

counsel

his client was about to say

presents

as to what he believed
difficulties as

well, for other reasons.

Cf. United States

___ _____________

v.

Harris, 914 F.2d 927, 930-31 (7th Cir. 1990).

______

an

attorney's

against

his

statements may
client

801(d)(2)(D).
States v.
______

as

See Harris,
___ ______

Valencia,
________

be

imputed

to and

principal under
914 F.2d at 931.

826 F.2d

169,

Sometimes,

Fed.

admitted
R.

Evid.

But cf. United

________ ______

172-73 (2d

Cir.

1987)

(acknowledging that an attorney's statements can sometimes be

used

against

admitting

client-defendant,

such

statements

in

but
criminal

infringing defendant's right against

right to

such a

disqualified],

apply to

caution

context

to

in

avoid

self-incrimination, the

counsel of the defendant's choice [i.e., insofar as

admission of

counsel).

urging

and

statement might
the

right

It is doubtful,
such an offer of

require counsel

to effective

assistance

though, whether this

proof by counsel at

to be
of

rule would
sidebar.

In

any event, even if

the rule properly applied, it

would only

make the statements admissible against Hartley, not

See Fed. R. Evid. 801(d)(2)(D) (statement by
___

Lombard.

a party's agent

is only admissible against that party).

26.

The

defendant's only

contemporaneous objection

testimony at trial

was limited to

transcript

earlier proceeding.

of the

obviated when the

specific language in
This

redacted before the testimony was admitted.

the

objection was

district court ordered the language

-5151

to the

to be

1770, 1778 (1993).

Theriault's testimony, as well as that of

her mother, independently established Hartley's

Lombard's status

as a

stipulated to having

of

Lombard himself

committed prior felonies.27

Admission

the challenged evidence was not plain error, and there is

no basis for reversal.

C.

convicted felon, and

knowledge of

See id. at 1777-78.

___ ___

Admission of Testimony About the Murders

________________________________________

The admission of

a substantial amount of

concerning the murders, Lombard

evidence

argues, was error under Fed.

R. Evid. 403, because the prejudicial impact of that evidence

outweighed its probative value.

Lombard preserved his Rule 403 objection

respect

to

the Theriault

testimony.

He

has not

only with

met his

burden

of showing an abuse of discretion in the admission of

that testimony.

the district

See Abreu, 952 F.2d at 1467.

___ _____

court on

a Rule

A decision by

403 determination

must stand

____________________

27.

Because Hartley's testimony from

his own previous trial

was introduced for the purpose of proving Hartley's knowledge

of

Lombard's status as a

providing the jury with

stipulated prior

felon, and not

unnecessary details about

felonies, there

States v. Tavares,
______
_______

for the purpose of

21 F.3d 1,

was no error

6 (1st

Lombard's

under United
______

Cir. 1994) (en

banc)

("[W]e acknowledge that in some cases evidence concerning the

nature

of

the

prior

conviction

will

be

impeachment or other reasons, despite its

_________________
value

on

(emphasis
decision
trial

the

prior

added)).

conviction
In

any event,

had not been handed

(December

determination

1993)

element

and

of plain error.

the

down at the
thus

does

admissible

for

lack of probative
of

the

Tavares
_______

crime."
en

banc

time of Lombard's
not

affect

the

Cf. United States v. Collins,

___ _____________
_______

60 F.3d 4, 7 (1st Cir. 1995).

-5252

absent

demonstration

circumstances."

of

"extraordinarily

compelling

United States v. Lewis, 40 F.3d

______________
_____

1325, 1339

(1st Cir. 1994); see also United States v. Rodriguez-Estrada,

________ _____________
_________________

877

F.2d

153, 156

(1st

Cir. 1989).

There

are no

such

circumstances here.

That

admission

about

Lombard posed

of Hartley's

the

and

even his

murders undercuts

testimony.

Her

no Rule

testimony

his

403 objection

own former
___

objection

about

Hartley's and

the murders was at

relevant.

objectives

of

the

conspiracy charged was to

testimony

to Theriault's

conduct in connection with

One

of

to the

the

Lombard's

least equally

defendants'

"flee the State of Maine

in order

to avoid prosecution or the giving of testimony in connection

with the

homicides of Morris

The indictment also charged

Martin and Paul

that the defendants conspired to

"dispose of

certain evidence of Henry

possession"

of a firearm.

proof of the events

Lindsey, Jr."

Proof of

P. Lombard's unlawful

these charges required

surrounding the murders, the defendants'

knowledge of

the murders, and the

defendants' joint conduct

following the murders.

The district

possible

nor

murders

from

conspiracy.

on the

court recognized that

appropriate

the

to

excise all

government's

proof

it was neither

evidence

of

the

of

the

defendants'

It correctly observed that the evidence touching

murders had

some prejudicial effect,

____

-5353

but explicitly

weighed that effect against

in favor of

its probative value, and decided

admitting much,

offered.

There

circumstances"

are

that

court's balancing

no

but not all,

of the

"extraordinarily

would warrant

disturbing

testimony

compelling

the district

of prejudice against probative value here.

See Rivera-Gomez, 67 F.3d at 996-98.

___ ____________

The convictions are affirmed.

The sentence on
___________________________________________________

Count 2 of the indictment is vacated, and the case is

_____________________________________________________________

remanded for resentencing consistent with this opinion.

_______________________________________________________

-5454