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938 F. 2d 1327 - United States v. S Barry
938 F2d 1327 United States v. S Barry
938 F.2d 1327
291 U.S.App.D.C. 68, 60 USLW 2139
UNITED STATES of America,
Marion S. BARRY, Jr., Appellant.
District of Columbia Circuit.
Argued April 30, 1991.
Decided July 12, 1991.
Rehearing and Rehearing En Banc
Denied Aug. 29, 1991.
R. Kenneth Mundy, Washington, D.C., and William M. Kunstler, New York City, with whom Alan Dershowitz, was on the brief, Cambridge, Mass., for appellant.
Elizabeth Trosman, Asst. U.S. Atty., Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., John R. Fisher, Judith E. Retchin and Richard W. Roberts, Asst. U.S. Attys., Dept. of Justice, were on the brief, Washington, D.C., for appellee.
Before WALD, SENTELLE and HENDERSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
WALD, Circuit Judge:
Appellant Marion S. Barry ("Barry" or "appellant") was indicted on May 10, 1990, while he was Mayor of the District of Columbia, and charged with one count of conspiracy to possess cocaine in violation of 21 U.S.C. Secs. 846, 844(a), three counts of making false declarations to a grand jury in violation of 18 U.S.C. Sec. 1623, and ten counts of possession of cocaine in violation of 21 U.S.C. Sec. 844(a).1 After a trial that lasted almost two months, a jury convicted Barry on August 10, 1990, of one count of possession of cocaine.2 The district court subsequently sentenced Barry to six months in prison, to be followed by a one-year term of supervised release, and imposed a $5,000 fine. Barry now appeals both his conviction and his sentence. For the reasons discussed below, we affirm his conviction but remand for resentencing.
I. CHALLENGE TO THE CONVICTION
Barry contends that his conviction violated due process because there was a variance between the indictment and the government's proof at trial. In particular, Barry claims that the district court should have granted his motion for judgment of acquittal because the government failed to prove with certainty that he possessed cocaine on the dates specified in the indictment: "[b]etween on or about November 7, 1989 and on or about November 10, 1989." Indictment, Count 12. Although a variance between the facts stated in the indictment and the evidence introduced at trial could require a judgment of acquittal if it prejudiced the defendant by depriving him "of notice of the details of the charge against him and protection against reprosecution," Gaither v. United States, 413 F.2d 1061, 1072 (D.C.Cir.1969), we do not believe a variance occurred in this case. Cf. Russell v. United States, 369 U.S. 749, 763, 82 S.Ct. 1038, 1046, 8 L.Ed.2d 240 (1962); Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935).
Barry's claims revolve around the uncertainty in the testimony of Doris Crenshaw, the only government witness to the count of which Barry was convicted. Crenshaw testified that she visited Washington, D.C. and stayed at the Mayflower Hotel on three separate occasions in September, October, and November, 1989. Although she thought that Barry used cocaine with her at her hotel room on November 10, 1989, the last day of the November trip, she could not state conclusively that this occurred during her November trip rather than during the September or October trips. Thus, Barry concludes, there was a variance between the date specified in the indictment and the date established by the evidence admitted at the trial.
The problem with this argument is that it ignores other evidence in the record which indicates that Barry did possess cocaine with Crenshaw on November 10, 1989, the date specified in the indictment. Although at trial she could not recall the date on which the offense occurred, Crenshaw admitted that she had previously told the investigators and the grand jury that it occurred during the November trip. She was certain, moreover, that the offense occurred when Barry stopped by her room at the Mayflower in mid-morning of the last day of her trip as she was packing to go to the airport. In addition, Barry's phone records show that Crenshaw called at 9:00 a.m. on November 10, 1989, and left a message for him to call her "right away" at the Mayflower. Finally, Crenshaw testified that she thought the offense occurred on a weekend because Barry was dressed in casual clothes. Although none of the days that she stayed at the Mayflower in September, October, or November of 1989 were weekend days, the district court took judicial notice of the fact that November 10, 1989, a Friday, was Veterans' Day, a federal and District of Columbia holiday.
Viewing this evidence in the light most favorable to the government and giving the government the benefit of all legitimate inferences, see United States v. Eniola, 893 F.2d 383, 389 (D.C.Cir.1990), there was more than enough evidence from which the jury could have found that the offense occurred on November 10, 1989.3 We are thus unable to conclude that there was a variance between the indictment and the proof at trial, and we affirm the district court's denial of the motion for judgment of acquittal.
II. CHALLENGES TO THE SENTENCE
Barry also raises several challenges to his sentence. In particular, Barry claims that: (1) the district court was biased against him; (2) the court violated Federal Rule of Criminal Procedure 32(c) by failing to give him and his counsel ten days to review the presentence report prior to sentencing; (3) the court erroneously enhanced the sentence two levels on the ground that Barry obstructed the administration of justice within the meaning of Sentencing Guidelines Sec. 3C1.1; and (4) in imposing a sentence at the upper end of the applicable guidelines range, the court relied on unfounded assumptions that Barry disappointed the community and gave "aid, comfort, and encouragement to the drug culture at large." For the reasons discussed below, we do not believe that the district court exhibited impermissible bias against Barry or that it relied on unfounded assumptions that Barry disappointed the community. Nevertheless, we remand for resentencing because the district court failed to specify the applicable guidelines range and the court's factual findings do not support the conclusion that Barry obstructed the administration of justice within the meaning of Sentencing Guidelines Sec. 3C1.1.
A. Application of the Guidelines
The district court's failure to explain how it was applying the Sentencing Guidelines has complicated our review of appellant's challenges to the propriety of the sentence awarded in this case. In fact, the government and appellant vigorously disagree about whether the district court sentenced appellant under guidelines level six, which provides for prison sentences of zero to six months, or level eight, which provides for prison sentences of two to eight months. See United States Sentencing Commission, Guidelines Manual, Sentencing Table (Nov.1989). After reading the district court's sentencing memorandum, we, too, are not entirely certain about what the district court thought the appropriate guidelines level was.
To determine the appropriate sentence under the Sentencing Guidelines, the district court must first determine two things: (1) the relevant offense level for the offense(s) committed by the defendant, and (2) the defendant's criminal history. See U.S.S.G. Sentencing Table, comment. (n.1) (1989). The relevant offense level is the sum of the base offense level for the offense(s) committed by the defendant and any enhancements or deductions based on the vulnerability or identity of the victim, the defendant's role in the offense, the defendant's willingness to accept responsibility for his wrongdoing, and/or the defendant's attempts to obstruct the investigation or prosecution of the offense. See U.S.S.G. Ch. 2, Ch. 3. With the offense level and the criminal history, the court can ascertain, from the Sentencing Table, the relevant guidelines range in months of imprisonment. The court may then impose a sentence within the guidelines range or, if it "finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines," the court may depart from the guidelines and impose a sentence outside the guidelines range. 18 U.S.C. Sec. 3553(b). In this case, the court did not clearly explain how it went through this process.
First, the district court did not identify what it believed to be the relevant base offense level. We assume that the court found that the base offense level was six, because the presentence report correctly stated that Sentencing Guidelines Sec. 2D2.1 provides a base offense level of six for possession of cocaine and both parties agree that it is the relevant base offense level. Nevertheless, we think it imperative that district courts state what the appropriate base level is to avoid any uncertainty on appeal. See United States v. Williams, 891 F.2d 921, 924 (D.C.Cir.1989).
Second, and more important in this case, the court did not specifically state whether it decided to award any enhancements or reductions to the base offense level, or whether it decided to depart from the relevant Sentencing Guidelines range. This latter error created the confusion about which guidelines range the court actually applied in this case. Appellant and the government agree that the court enhanced the sentence by two levels pursuant to Sentencing Guidelines Sec. 3C1.1 because it found that appellant attempted to obstruct the administration of justice. They also agree that the court denied the government's request for an additional two-level enhancement for abuse of a position of public trust under Sec. 3B1.3; instead, they contend, the court considered appellant's public position under Sec. 1B1.4 in deciding which sentence to impose within the applicable guidelines range.4 They disagree, however, about whether the court granted appellant's request for a two-level reduction in the sentence for acceptance of responsibility within the meaning of Sec. 3E1.1, and the findings themselves are equivocal on that point. Although we think the government may have the better interpretation of the court's findings,5 we find it unnecessary for us to resolve this dispute in light of our decision to remand for resentencing.
There should not be disputes about what guidelines range the district court applied or how that range was selected. Congress gave both defendants and the government the right to appeal, inter alia, a sentence "imposed as a result of an incorrect application of the sentencing guidelines." 18 U.S.C. Secs. 3742(a)(2), (b)(2). Congress similarly provided that "[u]pon review of the record, the court of appeals shall determine whether the sentence ... was imposed as a result of an incorrect application of the sentencing guidelines...." Id. Sec. 3742(e)(2); see also Williams, 891 F.2d at 924. The parties' right of review is frustrated, however, if they do not know the legal basis for the district court's decision. Even so, we might have hesitated to require a remand if there had not been additional errors in the court's decision to enhance appellant's sentence by two levels for obstruction of justice. On remand, therefore, the district court should clearly state what it finds the relevant offense level--both the base offense level and any applicable enhancements or reductions--to be and, if applicable, why it is appropriate to depart from the guidelines and impose a sentence outside the relevant guidelines range.
B. Obstruction of Justice
Barry contends, first, that the district court erred in enhancing his sentence by two levels for obstruction of justice under Sentencing Guidelines Sec. 3C1.1. That section states: "If the defendant willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant offense, increase the offense level by 2 levels." U.S.S.G. Sec. 3C1.1 (1989). The district court explained that a Sec. 3C1.1 enhancement was warranted because the evidence indicated that Barry "employed subterfuge and false testimony--his own and that of others--in an attempt to avoid exposure and prosecution altogether. The court concludes the defendant's conduct in that regard represented a willful attempt at obstruction of justice."
On appeal, we will "uphold the district court's sentence so long as it results from a correct application of the guidelines to factual findings which are not clearly erroneous." United States v. Young, 932 F.2d 1510, 1512 (D.C.Cir.1991) (internal quotations omitted); see also United States v. Irabor, 894 F.2d 554, 555 (2d Cir.1990) (question of whether Sec. 3C1.1 applies to the defendant's obstructive conduct is reviewed de novo because it involves the legal interpretation of a guideline). Although the court did not say so explicitly, we accept the parties' assertion that, at a minimum, the testimony the court found to be false was the January, 1989 grand jury testimony of appellant and Charles Lewis.6 Cf. Presentence Report at 3 (finding a Sec. 3C1.1 enhancement warranted because appellant attempted to obstruct grand jury proceedings by falsely testifying in January, 1989 that he had never given cocaine to or received cocaine from Lewis). In December, 1988, a federal grand jury began investigating, inter alia, whether Barry or Lewis had possessed or distributed cocaine in the District of Columbia in violation of federal law and whether they possessed cocaine together at the Ramada Inn in the District of Columbia on December 22, 1988. See Indictment, Count 8. The following January, Barry and Lewis both testified before the grand jury that they did not possess cocaine at the Ramada Inn, and that they had never given each other cocaine. See Indictment, Counts 8, 9 & 10. At Barry's trial, however, Lewis testified that he and Barry had, in fact, used cocaine together at the Ramada Inn and on several other occasions. Moreover, Lewis said that he had lied to the police and grand jury about his own and Barry's use of cocaine and that Barry had encouraged him to lie to protect both of them.
As this brief summary of the record indicates, there was ample evidence to support the trial court's implicit factual findings that Barry lied and encouraged Lewis to lie to the grand jury in order to avoid prosecution. Nevertheless, appellant contends that the Sec. 3C1.1 enhancement must be reversed because Sec. 3C1.1 requires that there be a "direct, clear and substantial nexus" between the obstructive conduct and the offense of conviction. That nexus cannot be shown in this case, appellant continues, because his and Lewis' perjuries were "completely unrelated" to the offense of conviction, which did not occur until ten months after the perjury. Although that argument is not without surface appeal, on reflection we decline to reverse the Sec. 3C1.1 enhancement on the ground that the perjury could not have been found to be sufficiently related to the offense of conviction to justify a Sec. 3C1.1 enhancement. We do conclude, however, that we must vacate the sentence and remand for resentencing because the factual findings made in support of the Sec. 3C1.1 enhancement fail to explain in any respect how appellant's perjurious grand jury testimony in January, 1989 about his relationship and prior cocaine use with Lewis constituted an attempt to obstruct the investigation into his possession of cocaine with Crenshaw some ten months later. The absence of such an explanation leaves us unable to discern whether the trial court thought that appellant's perjury constituted an attempt to obstruct the administration of justice with respect to the offense of conviction or whether the trial court was proceeding on the erroneous belief that Sec. 3C1.1 does not require such a finding. Thus, although we in no way condone Barry's perjury or his urging of others to commit perjury, we are constrained to remand the sentencing portion of this case for clarification and application of the correct legal standard. See United States v. Caballero, 936 F.2d 1292, 1299-1300 (D.C.Cir. June 21, 1991); United States v. Lam Kwong-Wah, 924 F.2d 298, 307 (D.C.Cir.1991).
Section 3C1.1 indicates that the obstruction of justice enhancement does not apply to any and all obstructive conduct that a defendant may have attempted or committed, but instead applies only to willful attempts "to obstruct or impede the administration of justice during the investigation or prosecution of the instant offense." U.S.S.G. Sec. 3C1.1 (1989).7 Although the guidelines do not define the term, we agree with our sister circuits that the term "instant offense" in Sec. 3C1.1 refers solely to the offense of conviction, in this case the Crenshaw incident in November, 1989. See, e.g., United States v. Perdomo, 927 F.2d 111, 118 (2d Cir.1991); United States v. Dortch, 923 F.2d 629, 632 (8th Cir.1991); United States v. Roberson, 872 F.2d 597, 609 (5th Cir.), cert. denied, 493 U.S. 861, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989). In addition to being the more natural reading of the language of the section, this interpretation is supported by the commentary to Sec. 3C1.1. The commentary explains that the Sec. 3C1.1 enhancement is inapplicable if the defendant is convicted of an offense involving the administration of justice (like perjury or obstruction of justice) unless "a significant further obstruction occurred during the investigation or prosecution of the obstruction offense itself." U.S.S.G. Sec. 3C1.1, comment. (n. 4) (1989). See also U.S. Sentencing Commission, Questions Most Frequently Asked about the Sentencing Guidelines, Question 35 at 9 (Vol. IV, Dec. 1, 1990) (if the "instant offense is bribery of a witness" and the "defendant bribed the witness not to testify against him in another case," the obstruction of justice enhancement does not apply because "[s]ection 3C1.1 states that the obstruction must have taken place 'during the investigation or prosecution of the instant offense.' ") (emphasis in original). This commentary indicates, therefore, that the "instant offense" is the offense of conviction.
In addition, as Sec. 3C1.1 itself states, the enhancement applies only if the obstruction or attempted obstruction took place "during the investigation or prosecution" of the instant offense. This language admittedly poses a problem of construction. If one were to construe the language of Sec. 3C1.1 literally, one might conclude, as appellant does, that the obstruction must have occurred after the authorities had already begun investigating the offense of conviction. Such an interpretation would, however, produce some counterintuitive, even absurd, results. The enhancement would not apply to a defendant who attempts to obstruct an investigation even before he commits the offense, as for example, by bribing a prosecutor or police officer not to undertake an investigation of his future conduct. On the other hand, a defendant who attempts to obstruct the investigation of a crime completely unrelated to the offense of conviction would receive the enhancement simply because the obstruction of the unrelated crime occurred during the investigation or prosecution of the offense of conviction, e.g., a defendant who bribes an IRS agent to obtain a favorable audit of his tax returns during a prosecution for carrying an illegal firearm. Neither result makes sense.
Fortunately, the language of Sec. 3C1.1 is not our only guide. The commentary explains that Sec. 3C1.1 "provides a sentence enhancement for a defendant who engages in conduct calculated to mislead or deceive authorities or those involved in a judicial proceeding, or otherwise to willfully interfere with the disposition of criminal charges, in respect to the instant offense." U.S.S.G. Sec. 3C1.1, comment. (1989) (emphasis supplied). Thus, the commentary clarifies that the significant factor is not the mere timing of the obstruction but rather whether the defendant attempted to obstruct the administration of justice with respect to the investigation or prosecution of the offense of conviction.8 In other words, the commentary reinforces the more plausible interpretation of Sec. 3C1.1 as applying if the defendant obstructed or attempted to obstruct the administration of justice with respect to the investigation or prosecution of the offense of conviction by destroying evidence, committing perjury, unlawfully influencing a juror, or taking other action calculated to obstruct the investigation or disposition of the offense of conviction. See U.S.S.G. Sec. 3C1.1, comment. (n. 1) (1989).
The case law also supports this common sense interpretation. Our sister circuits have affirmed enhancements awarded under Sec. 3C1.1 when the defendant lied to authorities about a fact relevant to the offense of conviction or attempted to conceal evidence of the offense of conviction from authorities even though, at the time of the obstructive conduct, the authorities were actually investigating an offense other than the offense of conviction. See, e.g., United States v. Dortch, 923 F.2d 629, 631-32 (8th Cir.1991) (defendant stopped for a traffic violation tossed a package of cocaine out the window; Sec. 3C1.1 enhancement proper when defendant pled guilty to possession of cocaine with intent to distribute even though there was "no ongoing drug investigation at the time he tossed the cocaine out the window"); United States v. Roberson, 872 F.2d 597, 609 (5th Cir.) (defendant placed in police car after arrest for public intoxication attempted to conceal stolen credit card; Sec. 3C1.1 enhancement proper when defendant sentenced for credit card fraud), cert. denied, 493 U.S. 861, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989); cf. United States v. Lato, 934 F.2d 1080, 1082-83 (9th Cir.1991) (Sec. 3C1.1 enhancement proper because defendant, who participated in an insurance fraud scheme, used false identification documents and instructed a witness to lie and fabricate evidence in response to an investigation by state officials into conduct underlying the offense of conviction even though he was eventually prosecuted and convicted by federal officials).
Given the commentary and the case law interpreting Sec. 3C1.1, we conclude that the enhancement applies if the defendant attempted to obstruct justice in respect to the investigation or prosecution of the offense of conviction, even if the obstruction occurred before the police or prosecutors began investigating or prosecuting the specific offense of conviction. In our view, the enhancement applies if the defendant's obstructive conduct was calculated to obstruct the investigation or prosecution of the offense of conviction.
We thus reject Barry's argument that his perjury could not, as a matter of law, support a Sec. 3C1.1 enhancement because at the time he committed perjury, the grand jury was investigating only his drug use with Lewis rather than his drug use with Crenshaw. Although a much closer question, we also reject Barry's argument that his perjury could not support a Sec. 3C1.1 enhancement because he lied only about his drug use with Lewis, and not about his drug use with Crenshaw. We can conceive of situations in which a defendant's lies, although not specifically concerning the offense of conviction, could nonetheless be a willful attempt to mislead authorities about or to obstruct the investigation of the offense of conviction. Assume, for example, that in response to grand jury questioning, a defendant falsely testified that he was not selling illegal drugs in order to cover up both the fact that he was selling drugs and that he was laundering the proceeds from the drug sales. Assume further that the grand jury subsequently discovered the truth, and the defendant was convicted of money laundering, but not drug distribution. In this hypothetical, the trial court could award a Sec. 3C1.1 enhancement even though the defendant lied only about his drug sales because the lies were intended to mislead the grand jury about the money laundering as well.
In short, we are remanding rather than reversing the Sec. 3C1.1 enhancement awarded in this case because neither the timing of the perjury nor the subject matter of the perjury per se precludes the court from finding that the perjury constituted obstruction of justice with respect to the investigation or prosecution of the offense of conviction. And any necessary findings as to whether the perjury constituted a willful attempt to mislead authorities about or to obstruct the investigation of the offense of conviction must be made initially by the district court rather than the court of appeals.
In reaching this conclusion, we reject the government's argument that the district court's findings are legally sufficient to affirm the Sec. 3C1.1 enhancement and that it need not show that Barry's perjury constituted an attempt to mislead authorities about or to obstruct the investigation or prosecution of the offense of conviction. The government's argument relies on Sentencing Guidelines Sec. 1B1.3(a)(1), which states that
[u]nless otherwise specified, ... adjustments in Chapter Three, [which includes Sec. 3C1.1] shall be determined on the basis of ... all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense.
U.S.S.G. Sec. 1B1.3(a)(1) (1989). In the government's view, the trial court's findings support a Sec. 3C1.1 enhancement because appellant's perjury was "in preparation for" the offense of conviction, was "otherwise in furtherance of that offense," or was an attempt to avoid "responsibility for that offense." We are not persuaded.
As an initial matter, we note that the trial court's factual findings do not support the government's assertion that appellant's and Lewis' perjurious testimony was given "in preparation for," or "in furtherance of," or constituted an attempt to avoid responsibility for the offense of conviction. The government's contention rests on the bare assertion that Barry and Lewis were involved in a conspiracy to possess cocaine and that Barry's possession of cocaine with Crenshaw was an act in furtherance of that conspiracy. From there, the government argues that Barry and Lewis lied to the grand jury in an attempt to mislead the grand jury about and to impede the investigation of the conspiracy to possess cocaine, which included the offense of conviction. However, the jury failed to convict Barry of the conspiracy count of the indictment, and the district court made no findings at sentencing that he was accountable on the conspiracy charge, see U.S.S.G. Sec. 1B1.3(a)(1), much less that both the perjured grand jury testimony and Barry's possession of cocaine with Crenshaw were acts in furtherance of that conspiracy.
More importantly, we do not think that Sec. 1B1.3(a)(1) expands the conduct that will support a Sec. 3C1.1 enhancement. In other words, Sec. 1B1.3 does not authorize a Sec. 3C1.1 enhancement on the ground that the obstructive conduct was "in furtherance of" or "in preparation for" the offense of conviction rather than being calculated to obstruct the investigation or prosecution of the offense of conviction. Section 1B1.3 states that "[u]nless otherwise specified," the Chapter Three adjustments shall be based on the conduct described in Sec. 1B1.3. Section 3C1.1 states, however, that an enhancement should be awarded if the defendant "attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant offense." And, as discussed above, the commentary to Sec. 3C1.1 states that the section applies if the defendant attempts to mislead authorities or those involved in a judicial proceeding or otherwise interfere with the disposition of criminal charges "in respect to the instant offense." Thus, to the extent that Sec. 1B1.3 would, by itself, allow a sentencing court to award an obstruction of justice enhancement because the obstructive conduct was "in furtherance of" or "in preparation for" the offense of conviction, we think that the Sentencing Commission has "specified otherwise" in Sec. 3C1.1.
In this respect, we agree with the Second Circuit in United States v. Perdomo, 927 F.2d 111, 113 (2d Cir.1991). The defendant in that case was arrested by agents of the Vermont Drug Task Force after he and an accomplice went to the airport in Burlington, Vermont to retrieve a package of cocaine arriving from Miami, Florida. Charged with five narcotics-related counts based on his role in the distribution of that cocaine, the defendant subsequently pled guilty to one count of conspiracy to distribute cocaine. The presentence report later revealed that the defendant had been involved in a larger conspiracy to transport cocaine from Miami to Montreal, Canada, that Burlington had sometimes been a transit point on the distribution route, and that the defendant had, several months earlier, attempted to dispose of a large quantity of cocaine before federal investigators raided a "stash" house in Miami where the cocaine was stored. Id. Finding that the defendant's earlier drug sales and the conspiracy count to which he pled guilty were part of the "same course of conduct," the Second Circuit affirmed the district court's decision, pursuant to Sec. 1B1.3(a)(2),9 to calculate the defendant's base offense level based on the quantity of cocaine the defendant previously agreed to deliver to a drug dealer in Montreal, as well as the cocaine recovered at the time of the defendant's arrest in Burlington. Id. at 115. Nevertheless, the Second Circuit reversed the Sec. 3C1.1 enhancement because the obstructive conduct relied on by the district court--the defendant's earlier attempt to destroy cocaine--did not pertain to the offense of conviction. Id. at 118. The court reasoned that because the "instant offense" is the offense of conviction, "Sec. 3C1.1 refers to efforts to obstruct the prosecution of the conviction offense only." Id.
Like the Second Circuit, we think that the language in Sec. 3C1.1, as well as the explanatory commentary, indicate that an obstruction of justice enhancement is warranted only if the defendant attempted to obstruct the investigation, prosecution, or sentencing of the offense of conviction. Because the district court has not adequately explained how Barry's and Lewis' perjurious grand jury testimony was calculated to obstruct the investigation of the offense of conviction, we are constrained to conclude that the district court's decision to award an enhancement pursuant to Sec. 3C1.1 is infirm.
We want to clarify, however, that we hold only that the initial district court findings are insufficient to support a Sec. 3C1.1 enhancement. In particular, we express no opinion about the merits of the government's contention that the district court could have awarded a Sec. 3C1.1 enhancement based on appellant's attempts to influence the jury through public pronouncements. While the commentary indicates that attempts to "threaten[ ], intimidat[e], or otherwise unlawfully ... influence a ... juror, directly or indirectly," may provide a basis for awarding a Sec. 3C1.1 enhancement, it also cautions that "suspect testimony and statements should be evaluated in a light most favorable to the defendant." U.S.S.G. Sec. 3C1.1, comment. (nn. 1(d) & 2) (1989). Furthermore, Sec. 3C1.1 "is not intended to punish a defendant for the exercise of a constitutional right," and "[a] defendant's denial of guilt is not a basis for application of this provision." U.S.S.G. Sec. 3C1.1, comment. (n. 3) (1989). In the absence of factual findings about what appellant said and how his statements were intended to influence the jury, we think it inadvisable for us to address the difficult issues attendant to the government's assertion that appellant's public statements could be the basis for a Sec. 3C1.1 enhancement. In this case, the district court expressly declined to make such findings, explaining that it was ignoring what it "perceive[d] to have been the defendant's efforts, once prosecution had commenced, to induce the jury to disregard the law and the evidence." We therefore decline to speculate about whether there is evidence in the record from which the district court could conclude that Barry obstructed the administration of justice within the meaning of Sec. 3C1.1.
C. Reliance on Appellant's "Letting Down the Community"
Appellant also claims that his sentence should be vacated because in selecting a sentence within the relevant guidelines range,10 the district court relied on unfounded assumptions that he let down the community and gave "aid, comfort, and encouragement to the drug culture at large." We disagree.
Before deciding what sentence to impose, "a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come." United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). In addition, a judge may draw reasonable inferences from the evidence, although he may not rely on mistaken information or baseless assumptions. See Roberts v. United States, 445 U.S. 552, 556, 100 S.Ct. 1358, 1362, 63 L.Ed.2d 622 (1980); United States v. Lemon, 723 F.2d 922, 933 (D.C.Cir.1983). Because "a trial judge in the federal judicial system generally has wide discretion in determining what sentence to impose," Tucker, 404 U.S. at 446, 92 S.Ct. at 591, appellate courts review sentences within the statutory maximum only to ensure that the court did not rely on inaccurate information or improper factors. See Dorszynski v. United States, 418 U.S. 424, 441, 94 S.Ct. 3042, 3051, 41 L.Ed.2d 855 (1974); Lemon, 723 F.2d at 933.
Notwithstanding appellant's claims, the record does not reflect that the district court relied on erroneous information or baseless assumptions. Appellant and his counsel effectively admitted that appellant had failed as a role model and that he had disappointed the community. In his letter to the judge before sentencing, for example, Barry admitted that his actions had caused "the citizens of [Washington, D.C.] shame and enormous pain" and that his behavior "hurt, confused and disappointed young people." In addition, Mr. Mundy, Barry's counsel, acknowledged at sentencing that Barry "stood before the public--before our youth--as an example, a person that [sic] should have been a role model because he was the number-one man in the District of Columbia Government." Mr. Mundy admitted, moreover, that Barry had "failed in his task to be an example--to be a leader." Therefore, in finding that Barry let down the community, the district court relied primarily on facts that Barry and his counsel admitted: namely, that Barry "failed as the good example he might have been to the citizens of Washington, D.C.--and, in particular, to the young," and that his conduct "contributed to the anguish that illegal drugs have inflicted on this city in so many ways for so long."
Barry did not specifically admit, however, that his actions gave "aid, comfort, and encouragement to the drug culture at large." Although his argument is not fully developed, Barry appears to contend that this statement, read in isolation, constitutes an unsupported finding that his actions had some adverse effect on the community, such as increasing drug use or drug trafficking. We interpret the court's observation differently. In our view, the statement is simply part of the court's finding that Barry failed as a leader and role model by sending a signal condoning the use of illegal drugs.11 This finding is clearly supported by the record evidence and, therefore, provides no basis for reversing Barry's sentence. Cf. United States v. Jackson, 649 F.2d 967, 983 (3d Cir.) (sentencing based on proper considerations where court stated that the defendant had "affected many lives in providing the drugs which addicted numerous individuals and in promoting the crimes which are perpetrated to pay for the drugs"), cert. denied, 454 U.S. 871, 102 S.Ct. 341, 70 L.Ed.2d 176 (1981).
D. Rule 32(c) Claim
Appellant also contends that his sentence should be reversed because the district court did not delay sentencing until he and his counsel had ten days to review the presentence report as required by Federal Rule of Criminal Procedure 32(c).12 Appellant received the presentence report on Tuesday, October 16, 1990, and sentencing was held ten days later on Friday, October 26, 1990. But because Federal Rule of Criminal Procedure 45(a) provides that "[w]hen a period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation," the government concedes that sentencing should have been deferred until Tuesday, October 30, to allow appellant ten working days to review the presentence report.13 Nevertheless, the government contends, the technical noncompliance with the rule does not justify a remand in this case because appellant has not shown that he was prejudiced by the court's refusal to defer sentencing. We agree.
Federal Rule of Criminal Procedure 52(a) provides that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Consequently, we agree with our sister circuits that the trial court's failure to provide the full ten-day notice required by Rule 32(c) does not provide a basis for vacating a sentence and remanding for resentencing unless the defendant suffered some prejudice. See, e.g., United States v. Turner, 898 F.2d 705, 714 (9th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 2574, 109 L.Ed.2d 756 (1990); United States v. Wright, 873 F.2d 437, 445 (1st Cir.1989).
In this case, Barry has not demonstrated that he was prejudiced by the court's failure to defer sentencing until he and his counsel had ten days to review the presentence report. Before the sentencing hearing, Barry's counsel filed detailed responses to the presentence report and the government's sentencing memoranda, fully addressing every issue that Barry now raises on appeal. We are, therefore, constrained to conclude that the Rule 32(c) violation does not provide an independent basis for remanding for resentencing because Barry has not shown that the court's error caused him any tangible harm.
E. Bias of the District Court
Appellant requests, finally, that we vacate his sentence and remand for resentencing before a different district court judge because the district court was improperly biased against him at the time of sentencing. For the reasons discussed below, we find no merit to appellant's bias claims. Thus, although we vacate the sentence because the district court failed clearly to explain how it was applying the Sentencing Guidelines and because the factual findings do not support the award of the obstruction of justice enhancement, we remand for resentencing before the same district court judge.
The statute governing recusal for judicial bias, 28 U.S.C. Sec. 455,14 states that a judge of the United States "shall disqualify himself" if "he has a personal bias or prejudice concerning a party."15 To be disqualifying, the court's bias and prejudice "must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966). None of the statements and rulings that appellant claims are indicative of the trial court's racial and personal bias against him satisfy that test.16
Barry identifies three incidents that he believes indicate the trial court's bias. First, Barry points to the court's refusal to permit two well-known black ministers, Reverend Farrakhan and Bishop Stallings, to attend the trial using appellant's reserved "passes." Although a legal ruling may not itself serve as the basis for a motion to disqualify, Liberty Lobby, Inc. v. Dow Jones & Co., Inc., 838 F.2d 1287, 1301 (D.C.Cir.), cert. denied, 488 U.S. 825, 109 S.Ct. 75, 102 L.Ed.2d 51 (1988); United States v. Haldeman, 559 F.2d 31, 133 (D.C.Cir.1976) (en banc), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977), a particular judicial ruling "can be evidence of an extrajudicial bias or prejudice." United States v. Heldt, 668 F.2d 1238, 1272 n. 72 (D.C.Cir.1981) (emphasis in original), cert. denied, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 440 (1982). Appellant argues that the exclusion of Farrakhan and Stallings without an evidentiary hearing indicates that the court's impressions were gained from extrajudicial sources.17 Furthermore, appellant contends that the court referred to Farrakhan and Stallings in derogatory terms. Together, appellant asserts, these facts indicate that the court harbored a "manifest distrust" of him and the jury and thought that he was "guilty of everything." Contrary to appellant's assertions, the trial court's actions and explanations do not indicate that the court harbored any negative preconceptions about appellant, the merits of his case, or the sentence that should be awarded. The court excluded Reverend Farrakhan "because I find that his presence would be potentially disruptive, very likely intimidating and he is a persona non grata for the trial of this case." Bishop Stallings similarly was excluded because "[h]e is, once again, for the same reason, in my judgment, not an ordinary member of the public and his presence would very likely have the same effect as Mr. Farrakhan's." Even assuming that these findings were erroneous and that the absence of a hearing indicated that the court made these findings on the basis of extrajudicial information, we do not believe that they evidence animus against appellant or an inability to rule impartially on the merits of his case. Cf. United States v. Parrilla Bonilla, 626 F.2d 177, 180 (1st Cir.1980) (erroneous use of judicial notice and erroneous factual findings are not an indication of bias in the absence of an indication that the court had an animus that would affect his ability to rule impartially). There is no indication in the record that the court thought appellant had orchestrated Stallings' and Farrakhan's appearances in order to disrupt the trial or influence the jury.18 Nor is there any indication that the court thought appellant shared Stallings' and Farrakhan's views. Thus, even if the court relied on extrajudicial information and erroneously concluded that Stallings and Farrakhan would be a disruptive influence at the trial, there is no indication that the court harbored similar feelings about appellant. Instead of demonstrating bias against appellant, the court's actions, while perhaps misguided, reflected a concern for preserving a fair and orderly trial.
Appellant's second allegation of bias stems from remarks made by the trial court at sentencing. Appellant objects to the court's statement that "[t]he jurors will have to answer to themselves and to their fellow citizens for the way in which they discharged their duty." In appellant's view, this statement is further indication of the court's "pattern of bias" against appellant and its displeasure with the jury verdict, which, appellant contends, the court transferred to him at sentencing. Again, we disagree. Although this statement may indicate that the court thought appellant was guilty of more counts than he was convicted of, there is no indication that the court reached this conclusion based on anything other than its participation in the case. Moreover, it is permissible for the court to consider evidence relating to non-conviction counts in sentencing. See, e.g., United States v. Campbell, 684 F.2d 141, 152-55 (D.C.Cir.1982). Consequently, we find no basis for concluding that the court's remarks at sentencing illustrate an impermissible extrajudicial bias against appellant. Cf. Grinnell Corp., 384 U.S. at 583, 86 S.Ct. at 1710 (no disqualifying bias found where "[a]ny adverse attitudes that [the judge] evinced toward the defendants were based on his study of the depositions and briefs").
Appellant alleges, finally, that the trial court's refusal to give him and his counsel ten days to review the presentence report as required by Fed.R.Crim.P. 32(c) illustrates the court's bias. On October 19, 1990, the court held a hearing to consider the accuracy of the presentence report. At that hearing, the trial court denied appellant's motion to delay consideration of the accuracy of the presentence report, finding that the preparation of the presentence report had been delayed primarily because appellant had not submitted material to the probation officer in a timely fashion and, therefore, appellant had waived his Rule 32(c) objection. Consequently, the court stated that it would go ahead with sentencing on October 26, 1990, as planned. Appellant's counsel renewed the Rule 32(c) objection at the sentencing hearing on October 26, explaining that the probation officer was available to testify that appellant had cooperated with the presentence investigation and had not been responsible for the delay in the preparation of the presentence report. Although the court responded that the probation officer's testimony was not necessary, it allowed appellant's counsel to make a proffer as to what the probation officer's testimony would be. The court then proceeded with the sentencing hearing.
Appellant contends that the court's erroneous conclusion that appellant was responsible for the delay in the preparation of the presentence report and its denial of his request to defer sentencing are indicative of the court's "high degree of bias" against appellant and its determination to speed to sentencing without regard to appellant's rights. The record does not support this assertion. Instead, the record indicates that the court was concerned that appellant have an opportunity to note his objections to the presentence report. Although it denied the motion to delay sentencing, the court specifically told appellant's counsel that he could raise any additional objections to the presentence report at the sentencing hearing and the court would consider them before imposing the sentence. Furthermore, the court remarked to appellant's counsel at the opening of the sentencing hearing, "for someone who didn't think he had enough time to respond, that was a rather comprehensive submission you presented last night." This indicates to us that the court thought that appellant had not been prejudiced by its decision to go ahead with sentencing as planned. Thus, while we do not condone the court's refusal to defer sentencing as appellant requested, we are unable to conclude that this erroneous ruling indicates that the court was biased against appellant or determined to ignore his rights.
In sum, although the trial court may have made some erroneous legal rulings in the trial and at sentencing, the record in no way supports Barry's claims that the court harbored a racial or personal bias against Barry or that the court based Barry's sentence on anything other than what it learned during its participation in the case. There is, therefore, no basis for remanding for resentencing before a different judge.
For the foregoing reasons, we affirm Barry's conviction, but we remand for resentencing under a proper application of the Sentencing Guidelines. Because we find Barry's allegations of judicial bias to be without merit, we decline his request that we remand for resentencing before a different judge.
The indictment handed down by the grand jury on May 10, 1990, superseded the initial indictment issued by the same grand jury on February 15, 1990. The initial indictment contained five counts of possession of cocaine and three perjury counts
The jury also acquitted appellant of one count of possession of cocaine but was unable to reach a verdict on the remaining counts
In fact, at sentencing, appellant's counsel argued that the offense did not entail an abuse of the office of mayor because when appellant "went along to Doris Crenshaw's room[,] [h]e was not on duty. It was a holiday, as I believe the evidence revealed. He was in a sweatsuit, as I believe the evidence revealed."
It is not clear to us that the parties have correctly interpreted the court's abuse of trust findings. In explaining its reasons for imposing the six-month sentence, the court stated that it was "[o]f greatest significance" that appellant "was at the time of his offense, the time of his conviction and is now at the time of his sentencing, the elected head of government, as Mayor the chief public official and personage of the city of Washington, D.C., the capital of the United States. His breach of public trust alone warrants an enhanced sentence." It is possible, therefore, that the court did decide to award an abuse of public trust enhancement. Our decision to remand obviates the need to resolve this issue, however, and we express no opinion about whether there is evidence in the record from which the district court could make specific factual findings to support a conclusion that Barry abused a position of public trust within the meaning of Sec. 3B1.3
Pointing to the court's finding that he admitted that he was an alcoholic and "compulsive user" of cocaine, appellant contends that the court granted a reduction for acceptance of responsibility. The government points out, however, that the court also found that appellant's admission of cocaine use was "belated" and that he "persiste[d], until the moment of his sentencing, in a formal attitude of denial."
Although appellant does not mention it, the government also contends that the "false testimony" found by the trial court included Rasheeda Moore's grand jury testimony in May, 1989, in which she falsely claimed that she had never used drugs with appellant. At appellant's trial, Moore did admit that she lied to the grand jury because she "was trying to protect [herself] and ... the Mayor." Unlike Lewis, however, Moore did not expressly say that Barry knew she was going to lie to the grand jury. Instead, she testified only that he told her to "be careful." Given the vagueness of this testimony and the absence of specific findings by the trial court, we are unwilling to assume that the trial court found that Barry encouraged Moore to lie in order to avoid prosecution
Although the 1989 Sentencing Guidelines, which govern appellant's sentence, state that Sec. 3C1.1 applies to attempts to obstruct the administration of justice "during the investigation or prosecution of the instant offense," we note that the 1990 Sentencing Guidelines clarify that Sec. 3C1.1 applies to attempts to obstruct the administration of justice during sentencing of the instant offense as well. See U.S.S.G. Sec. 3C1.1 (1990)
The commentary to the 1990 version of Sec. 3C1.1 similarly implies that the Sentencing Commission did not intend to bar consideration of attempts to obstruct the administration of justice with regard to the offense of conviction solely because the obstruction occurred before the commencement of the investigation of the offense. The commentary explains that the enhancement applies if the defendant did or attempted to destroy or conceal "evidence material to an official investigation or judicial proceeding (e.g., shredding a document or destroying ledgers upon learning that an official investigation has commenced or is about to commence)." U.S.S.G. Sec. 3C1.1, comment. (n. 3(d)) (1990) (emphasis supplied). While not specifically applicable to this case which is governed by the 1989 guidelines, the 1990 commentary is instructive because it suggests that the Sentencing Commission itself does not interpret the language of Sec. 3C1.1 as precluding consideration of obstructive conduct that occurs before the commencement of the investigation of the offense of conviction
Sentencing Guidelines Sec. 1B1.3(a)(2) states that "[u]nless otherwise specified," the base offense level for certain specified offenses, including the distribution of drugs, and any Chapter Three adjustments thereto, shall be based on "all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. Sec. 1B1.3(a)(2) (1989)
As discussed above, the parties disagree about whether the district court sentenced appellant under level six or eight. Consequently, they disagree about whether the court imposed what it thought was the maximum allowable sentence, or whether the sentence was two months less than the maximum
The district court stated, in pertinent part, that
the prevalence of the public rumors of defendant's frequent and conspicuous drug use--never dispelled, and now unfortunately shown to have been true--has given aid, comfort and encouragement to the drug culture at large, and contributed to the anguish that illegal drugs have inflicted on the city in so many ways for so long.
His prominence inspired others to emulate him and to behave as they believed he did.
Having failed as the good example he might have been to the citizens of Washington, D.C.--and, in particular, to the young who are so much more likely to respond to example than to admonition--the defendant must now become an example of another kind.
That rule states, in relevant part, that "[a]t least 10 days before imposing the sentence, unless this minimum period is waived by the defendant, the court shall provide the defendant and the defendant's counsel with a copy of the report of the presentence investigation...." Fed.R.Crim.P. 32(c)(3)(A). In addition, 18 U.S.C. Sec. 3552(d) similarly states that "[t]he court shall assure that a [presentence report] is disclosed to the defendant, the counsel for the defendant, and the attorney for the Government at least ten days prior to the date set for sentencing, unless this minimum period is waived by the defendant." Because appellant's counsel repeatedly requested the court to delay sentencing until he had ten days to review the report, it is clear that appellant did not waive his right to the ten-day notice period
Neither the parties nor the district court focused on the applicability of Rule 45 below. At the presentencing hearing on October 19, 1990, the government argued that it would not violate the ten-day rule to go ahead with the sentencing hearing on October 26, because appellant's counsel received the presentence report on October 16. Appellant responded that it would violate the rule to go ahead with sentencing on October 26 because, in his view, he was entitled to have the report for ten full days prior to sentencing and the day of the delivery of the document does not count
That section provides, in relevant part, that
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; ...
28 U.S.C. Sec. 144 also provides a procedure for bringing motions for recusal for judicial bias. That section states:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time.
28 U.S.C. Sec. 144. Because appellant has never filed an affidavit stating the facts underlying his bias claim, we will evaluate his claim under Sec. 455 rather than under Sec. 144. We note, however, that "since recusal can be sustained under [Sec. 455] on the same ground that exists in 144, appellant[ ] ha[s] lost little by [not pursuing his] section 144 claim." United States v. Heldt, 668 F.2d 1238, 1270 (D.C.Cir.1981), cert. denied, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 440 (1982).
Although 28 U.S.C. Sec. 455 does not contain an explicit timeliness requirement, the government argues that appellant waived the bias claim by not filing a disqualification motion at the sentencing hearing or filing a motion for resentencing on the ground that the trial court was biased. The government points out that at least one circuit has found the failure to file a timely disqualification motion to bar the party from raising, on appeal, a claim that the judge was biased. See United States v. York, 888 F.2d 1050, 1053-55 & n. 6 (5th Cir.1989). Other circuits have held, however, that the failure to file a timely disqualification motion in the trial court results in a higher burden of proof on appeal, but does not constitute a complete waiver of the claim. See, e.g., Noli v. Commissioner, 860 F.2d 1521, 1527 (9th Cir.1988); United States v. Schreiber, 599 F.2d 534, 535 (3d Cir.1979) (applying plain error standard), cert. denied, 444 U.S. 843, 100 S.Ct. 86, 62 L.Ed.2d 56 (1979). Still other circuits have held or suggested that there is a timeliness requirement for recusal motions based on the appearance of impartiality, while claims based on actual bias may be raised for the first time on appeal. See, e.g., United States v. Murphy, 768 F.2d 1518, 1539-41 (7th Cir.1985), cert. denied, 475 U.S. 1012, 106 S.Ct. 1188, 89 L.Ed.2d 304 (1986); United States v. Slay, 714 F.2d 1093, 1094-95 (11th Cir.1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984); cf., Jenkins v. Sterlacci, 849 F.2d 627, 634-35 (D.C.Cir.1988) (holding that the defendant's participation, without objection, in the hearing before a special master constituted a waiver of his claim that the special master should have disqualified himself under Canon 3 C(1) of the Code of Judicial Conduct for United States Judges because there was an appearance of impartiality, but not a waiver of his claim that the special master was actually biased). We do not decide which of these cases is correctly decided, however, because we find no merit to appellant's claim of bias in this case
In his brief appellant did not explicitly state that these incidents demonstrated that the trial court harbored a racial bias against him; at oral argument, however, appellant's counsel expressly claimed that these incidents demonstrated that the court harbored a racial, as well as a personal, bias against him. "This court ordinarily will refuse to disturb judgments on the basis of claims not adequately briefed on appeal." McBride v. Merrell Dow and Pharmaceuticals, Inc., 800 F.2d 1208, 1210 (D.C.Cir.1986). In addition, "[w]e generally will not entertain arguments omitted from an appellant's opening brief and raised initially in his reply brief" because it is "unfair to the appellee, [and] entails the risk of an improvident or ill-advised opinion on the legal issues tendered." Id. at 1210-11. These same concerns make us reluctant to address an argument raised for the first time at oral argument. Nevertheless, we will address the merits of appellant's racial bias argument because at base it involves only a different characterization of the evidence of bias discussed in appellant's briefs. Cf. Gruca v. Secretary of Army, 436 F.2d 239, 242 (D.C.Cir.1970) (considering "[a]nother aspect of the waiver argument [that] was not directly confronted in the briefs but was raised in oral argument"), cert. denied, 401 U.S. 978, 91 S.Ct. 1207, 28 L.Ed.2d 328 (1971)
Appellant subsequently appealed the court's decision to exclude the ministers, claiming that the action violated the sixth amendment. This court dismissed his appeal, however, finding that it lacked jurisdiction to hear his claims at that time. United States v. Barry, No. 90-3151, 1990 WL 104925 (July 5, 1990). Reverend Farrakhan and Bishop Stallings also appealed their exclusion on first and fifth amendment grounds, but this court remanded so they could present their claims to the district court in the first instance. Farrakhan v. United States, No. 90-3150, 1990 WL 104925 (July 5, 1990). No further judicial proceedings occurred, however, because the district court subsequently allowed the ministers to attend the trial
In fact, the record indicates that appellant did not know in advance that the ministers planned to attend the trial. Appellant's counsel told the trial court that "Bishop Stallings has presented himself at the courthouse today, unbeknownst to the defense, he showed up as a friend and to give support to the Mayor." Similarly, appellant's counsel explained that "the honorable Minister Louis Farrakhan has made an appearance at the court today.... We have four passes and one of the persons who has one of the passes is willing to give her pass to Minister Farrakhan...."


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Let the Produce Season Begin
Summer is finally over. Brassica transplants are in the ground, and direct-seeded broccoli and lettuce plantings are now beginning. In the past week, I've observed or received reports from PCAs of key insect pests beginning to show up (or not) on melon and early produce crops in the desert.
Seedling pests: Flea beetles (FB) are beginning to show up in transplanted crops like they always do, but pressure has been light so far. We haven't seen much in our experimental plots at YAC either. Remember, FB adults lay eggs in the soil of their favored local host plants (i.e., alfalfa, cotton, purslane, pigweed and nightshade) where larvae feed on the roots to later emerge as adults. So, keep in mind, the source of that FB infestations hitting your new stands may not just be freshly cut hay, defoliated cotton, or disked weeds. In some areas (Yuma Valley), crickets seem to be very abundant. Crickets like moisture and are often found under sprinkler pipes but can also be found in cracks in soils around fields or in drainage areas.
Bagrada bug: We've already had reports of bagrada bug adults on two transplanted cauliflower fields in Dome Valley. Not sure whether they arrived with the transplants or are moving from surrounding crops. However, it's still early and they might surprise you as the season progresses. Look for those fresh feeding signs on cotyledons and young leaves. Experience suggests that they are most abundant after the humidity breaks.
Lepidopterous Larvae (worms): Worm pressure seems to be below normal. Trap catches so far show that Cabbage looper moths are almost non-existent, and no reports on melons to date. They should pick-up as we approach October. No reports of Beet armyworm larvae on the earliest transplants yet, and areawide pheromone traps suggest that moth activity is below normal. But they will show up sooner or later, so get ready. You have numerous insecticide alternatives at your disposal to control them. Have had a couple of reports of Diamondback moth larvae on newly transplanted brassica crops. However, we've yet to capture moths on pheromone traps which suggests that adult immigration on high altitude winds associated with storms has not occurred. Remember, DBM disappear each summer and reestablish on desert crops via transplants or migrate in on monsoon/tropical storms. I strongly stress that you check your Cole crops closely this fall, particularly following storms or on plants originating from coastal CA.
Whiteflies: Area wide sticky trap captures have been about normal for early September, but whiteflies can migrate long distances on high winds. Adult numbers increased on my melon plants last week and remain high. Reports in area melons range from light to moderate numbers so far, but there is still a lot of cotton out there yet to be picked. The good news is there are several insecticide alternatives to control them in produce.
Reclamation of Saline and Sodic Soils
In the late 19th and early 20th centuries, as people moved out to settle the open territories of the western U.S., the development of lands for agriculture was a primary objective. However, they encountered problems with lands and soils that were sometimes found to be unsuitable for irrigation and crop production, often due to salinity, sodicity, and drainage problems. It was immediately recognized that much of the land and soils in the western U.S. needed to be "reclaimed" from their natural condition. The "reclamation" of these lands became an important part of the process. All this development was dependent on the availability of water and good land and water management capacities. This required large tracts of land and large projects. As a result, the U.S. federal government became involved in the development of these western territories.
In response to these needs in the western U.S. territories, the Reclamation Act and the U.S. Reclamation Service (USRS) was formed within the US Geological Survey under the Secretary of the Interior Ethan Allen Hitchcock when Theodore Roosevelt signed The Reclamation Act on 17 June 1902. The new USRS was given the responsibility of studying potential water development projects in each western state with federal lands. In 1907, the Secretary of the Interior separated the USRS from the USGS and created the Bureau of Reclamation (BoR) as a distinct entity within the Department of the Interior.
Along with the USRS and BoR, the U.S. Department of Agriculture (USDA) sent agronomists (crop and soil scientists) out into the western territories to study the soils and climate to find crop plants that were well-suited for adaptation. Colleges of Agriculture with the Land Grant Universities, such as the University of Arizona, were also involved in this process.
In the arid and semi-arid regions of the western U.S. soils were commonly saline from the accumulation of soluble salts due to low rainfall and high evaporation demand from the climate. Most of the soils suitable for crop production agriculture, such as in Arizona, are alluvial soils (deposited over time by water associated with rivers and streams) that are young geologically and very fertile and productive once they are reclaimed from salinity and sodicity. Salts had accumulated in these soils due to water being drawn out of the soils through evaporation. This repeated action over long periods of time resulted in high concentrations of soluble salts deposited in the upper portions of the soil profile. Soils were classified in terms of the salinity levels and today we commonly use the electrical conductivity (EC) of the soil solution as a standard measure. That is because solutions increase in electrical conductivity as the solute concentration, or salinity increases. The measure of EC is used for water (ECw) and the soil solution or soil saturation extracts (ECe).
The international (SI) unit of conductivity is 'Siemens' with the symbol 'S' per meter. The equivalent non-SI unit is 'mho' and 1 mho = 1 Siemens. Thus, for those not familiar with the SI system, mmhos/cm can be read the same as dS/m without any numerical change. The use of mmhos/cm is still found with some laboratories and references.
By definition a saline soil is a non-sodic soil containing sufficient soluble salt to adversely affect the growth of most crop plants with a lower limit of electrical conductivity of the saturated extract (ECe ) being 4 deciSiemens / meter (dS/m) or greater, which is equivalent to a value of 4 mmhos/cm . It is important to note that this is a lower limit by definition but the degree of soil salinity conditions are fully dependent upon the crop in question. Crop plant sensitivity to salinity varies tremendously among species (Tables 1 and 2).
Soil Salinity Class
Conductivity of the Soil Saturation Extract ECe(dS/m)
General Effect on Crop Plants
Non-saline
Salinity effects negligible
Slightly saline
Yields of sensitive crops may be restricted
Moderately saline
Yields of many crops are restricted
Strongly saline
Only tolerant crops yield satisfactorily
Very strongly saline
Only a few tolerant crops yield satisfactorily
Table 1. Soil salinity classes and crop growth.
Arid land soils are commonly naturally saline due to the process of soluble salt accumulations over long periods of time. Also, the rivers, streams, and aquifers used for irrigation also commonly carry significant concentrations of soluble salts. Dr. Wilford Gardner, one of my predecessors, colleagues, and friend from the UA, once state that "Successful irrigation schemes in arid regions carry the seeds of their own demise". This refers to the natural salinity of irrigation waters that will result in damaging salt accumulations over time if not managed properly.
Irrigation waters in Arizona commonly carry significant salt loads. As an example, by use of a simple conversion factor of 2.7 we can convert the concentration of any given solute in water to pounds (lbs.) of that solute delivered in each acre-foot (AF) of water. The following example uses water with a total solute (salt) concentration of 750 parts per million (ppm or mg/l), which is similar to Colorado River water quality. We can see that delivering five AF of this irrigation water in a single season delivers five tons of salt into that field. As a result, we must deal with this constant salt delivery in desert crop production systems.
Example: Solute Concentration (ppm) X 2.7 = lbs. of solute/AF-water
750 ppm X 2.7 = 2,032.5 lbs. salt/AF
2,032 lbs. salt/AF X 5 AF-water = 10,162.5 lbs. salt/acre
= (5.0 T salt/acre)
For the reclamation and management of soluble salts in a soil profile, leaching and the downward movement of the soluble salts through the crop root zone is the effective procedure needed. Leaching is accomplished by applying additional amounts of irrigation water to a soil profile that is already saturated. Leaching and the removal of soluble salts is effective when the soil-water moves below the root zone and good internal soil drainage carries the salts out of the soil-plant system in the field. Therefore, movement of water through the soil profile and root zone and good internal soil drainage are essential elements to this process of soil reclamation and management. Soil amendments are not needed for saline soil management. Additional water for salt leaching is needed.
A common question is "how much additional water is needed to accomplish sufficient leaching?". That is primarily dependent on the crop and the salinity level of the irrigation water. An effective and straightforward method of calculating a leaching requirement (LR) can be calculated with the following equation that was presented by the USDA Salinity Laboratory (Ayers and Westcot, 1989).
Leaching Requirement (LR) Calculation:
ECw = salinity of the irrigation water, electrical conductivity (dS/m)
ECe = critical plant salinity tolerance, electrical conductivity (dS/m)
This is a good method of a LR calculation that has been utilized extensively and successfully in Arizona and the desert Southwest for many years. We can easily determine the salinity of our irrigation waters (ECw) and we can find the critical plant salinity tolerance level from easily available tabulations of salinity tolerance for many crops (Ayers and Westcot, 1989). Additional direct references are from Dr. E.V. Maas' lab at the University of California (Maas, 1984: Maas, 1986; Maas and Grattan, 1999; Maas and Grieve, 1994; and Maas and Hoffman, 1997).
There are many methods to calculate the proper LR and the one shown here (Ayers and Westcot, 1989) is good in my view because it includes the specific salinity limits for the crop and salinity levels of the irrigation water. Also, it is very simple and straightforward to use and apply.
For example, we can see in Table 2 from a few selected crops commonly grown in Arizona the variation in salinity tolerance. For a given quality of water (ECe) the LRs calculated from the equation above will increase with lower salinity tolerance levels. For example, lettuce will require a higher LR than cotton or barley using the same water for irrigation.
Table 2. Salinity tolerance for selected crops with soil solution salinity levels (ECe, dS/m at 25oC) where yields will be reduced by 10, 25, and 50%.
Lettuce (Latuca sativaL.)
Broccoli (Brassica oleraceaL.)
Cotton (Gossypium hirsutumL.)
Barley (Hordeum vulgareL.)
Adapted from L. Bernstein, Salt Tolerance of Plants, USDA Bull. 283, 1964 and E.V. Maas, 1984.
The other major issue of reclamation and management of arid region soils is associated with high sodium (Na) concentrations. Sodic soils are often identified by problems with water infiltration and extensive soil crusting. By definition, a sodic soil is non-saline (ECe < 4.0 dS/m) but with relatively high levels of Na on the soil cation exchange complex (CEC). The Na in the soil is commonly measured by the Sodium Adsorption Ratio (SAR) from a soil analysis or the Exchangeable Sodium Percentage (ESP). The SAR is commonly used because it is a more direct and faster method of analysis in the laboratory.
By definition, sodic soils have an SAR > 13 and a pH > 8.5. However, that is not a great diagnostic tool in itself since we have encountered cases in many arid regions, including Arizona, where that pH classification does not hold. Finer textured soils with higher clay content can express sodicity symptoms, soil crusting and infiltration problems with SAR values of 6-12. Thus, finer textured soils are more sensitive in this regard.
It is important to note that saline soils will be well-aggregated with good soil structure. On the other hand, sodic soils will be dispersed with poor aggregation and bad soil structure.
The SAR for a soil can be easily calculated from the laboratory analysis of a good soil sample from the field with the following equation:
Sodic soil problems require a two-step process for reclamation that includes first a soil amendment, commonly a calcium (Ca) source to replace the Na on the CEC with materials such as Gypsum (CaSO4). In Arizona and the desert Southwest, our soils are generally very calcareous, with high amounts of natural Ca in the form of CaCO3, commonly known as caliche. Agricultural acid is often used to liberate free Ca in the soil from the caliche present that is then used to effectively exchange for the Na on the soil CEC. Following that chemical exchange, the soluble Na then needs to be leached out of the soil profile, Figure 2. Thus, sodic soil reclamation is a two-step process: 1) Exchange of Na with Ca and 2) leaching of soluble Na+ from the crop root zone.
Figure 1. Calcium (Ca2+) and (Na+) exchange and leaching of soluble Na+
Thus, in either case of dealing with a saline and/or sodic soil, leaching and additional water is needed for remediation and sustainable land management. This means additional irrigation water is needed above and beyond the requirement for crop water consumptive use.
For viable and sustainable crop production systems in the western U.S., appropriate agronomic (crop and soil) management of soil salinity and sodicity is essential. We need irrigation water to not only sustain crop water needs but also enough water to sufficiently leach the soluble salts from the soil profile. Accordingly, good soil drainage is also essential. There are many historical and present-day cases around the world in arid and semi-arid regions where this has been ignored or mis-managed and it has consistently served to the demise of those agricultural systems.
In summary, saline soils need sufficient leaching of soluble salts for reclamation and management. No soil amendments are needed for a saline soil management. Sodic soils will require an amendment to exchange the Na on the soil CEC with Ca or a similar ion. Then soluble Na in soil solution needs to be leached from the crop root zone. Thus, salinity management involves the basic process of adequate soil leaching and sodic soil reclamation is a two-step process: 1) Na exchange and 2) leaching of soluble Na from the crop root zone with sufficient irrigation water.
One of the best management practices in the field is to watch and monitor crop and soil conditions, take soil and water samples as part of the routine field monitoring effort, and manage irrigations and drainage systems to accommodate total water needs that our soil-plant systems and crop production operations depend on.
One concern that we should all be alert to in this time of water shortage, is the need to manage and budget sufficient irrigation water to manage our agricultural lands and soils for optimum crop water needs and also leaching to manage soil salinity. Arizona and desert Southwest agriculture has done a good job of this in the past by adequately managing salinity and sodicity in our crop production systems and it is important that we incorporate these points into our future management plans. Reclamation was important 120 years ago and it is still extremely important for us today in the management of western agriculture and crop production systems.
Ayers, R.S. and D.W. Westcot. 1989 (reprinted 1994). Water quality for agriculture. FAO Irrigation and Drainage Paper 29 Rev. 1. ISBN 92-5-102263-1. Food and Agriculture Organization of the United Nations Rome, 1985 © FAO.
https://www.fao.org/3/t0234e/t0234e00.htm
Maas, E.V. 1984. Crop tolerance to salinity. California Agriculture, October 1984. https://calag.ucanr.edu/archive/?type=pdf&article=ca.v038n10p20
Maas, E.V. 1986. Salt tolerance of plants. Appl. Agric. Res., 1, 12-36.
Maas, E.V. and S.R. Grattan. 1999. Crop yields as affected by salinity, Agricultural Drainage, Agronomy Monograph No. 38.
Maas, E. V., and Grattan, S. R. (1999). Crop yields as affected by salinity, agricultural
drainage, Agronomy Monograph No. 38, R. W.
Maas, E. V., and Grieve, C. M. 1994. "Salt tolerance of plants at different growth stages," in Proc., Int. Conf. Current Developments in Salinity and Drought Tolerance of Plants. January 7–11, 1990, Tando Jam, Pakistan, 181–197.
Maas, E. V., and Hoffman, G. J. (1977). "Crop salt tolerance: Current assessment."
J. Irrig. Drain. Div. ASCE, 103, 115–134.
First Report of Powdery Mildew Caused by Golovinomyces latisporus on Helianthus annuus in Arizona
Helianthus annuus, known as the common sunflower, is an annual plant indigenous to the United States. The crop isgrown for its edible oil, seeds, and as an ornamental. In November 2021, powdery mildew-like signs and symptoms were observed on sunflower in a house garden located at Fortuna Foothills, Yuma County, AZ (32.6725°N, 114.4329°W). Signs of powdery mildew included white blotches of amphigenous and caulicolous mycelia. Initially, signs appeared as circular spots that expanded over the entire leaf and were also observed later on petioles and stems. Fungal hyphae were branched, septate, and with nipple-shaped appressoria. Foot cells of conidiophores were erect, cylindrical, and followed by one to three short cells bearing conidia. The conidiophores were hyaline, straight, cylindrical and produced short chains of up to four immature conidia. Conidia were ovoid to ellipsoid, seldom cylindrical, without-fibrosin bodies and measured 25 to 40 μm in length (mean= 34 μm) and 16 to 24 μm in width (mean= 18.6 μm) (n = 10), with an average length: width ratio of 1.8. The germination of conidia was Euoidium type with short germ tube. Chasmothecium formation was not detected. As the disease progressed, the infected leaves became wilted and senesced. The morphological characteristics of this fungus were in accordance with those described for G. latisporus (Braun and Cook, 2012; Qiu et al., 2020). For molecular identification, genomic DNA was isolated from fungal colonies using the DNeasy Plant kit (Qiagen). The internal transcribed spacer (ITS), large ribosomal subunit (28S), intergenic spacer (IGS), beta- tubulin (TUB2) and chitin synthase 1 (CHS1) regions were amplified using the primer sets, ITS5/ITS4 (White et al., 1990), LSU1/LSU2 (Scholin et al., 1994), IGS-12a/NS1R (Carbone and Kohn, 1999), TubF1/TubR1 and gCS1a1/gCS1b (Qiu et al., 2020). Sequences were submitted in the GenBank under accession numbers OP160535 (ITS), OP153874 (28S rDNA), OP160534 (IGS), OP168959 (TUB2) and OP168960 (CHS1). A BLAST search revealed 98.7 to 100-% identity to G. latisporus sequences (MK452603, NG_068877, MK452520, MK452476, and MK452428). Phylogenetic analysis based on the combined sequence datasets of ITS+28S rDNA+IGS+TUB2+CHS1 also grouped Yuma isolate in a monophyletic clade with G. latisporus accessions from Qiu et al. (2020). A pathogenicity test was carried out by inoculating four sunflower varieties (Velvet queen, Evening sun, Skyscraper and Mammoth). Conidia from infected leaves were dusted on the leaves of 10 individually potted, five-week-old seedlings of each variety. Four seedlings of each variety were not inoculated and served as controls. The inoculated and control plants were then kept in two separate greenhouses at 25-28°C at the Yuma Agricultural Center, Yuma, AZ. Inoculated plants started showing symptoms of powdery mildew within 7 days of inoculation, while the control plants stayed healthy and disease-free. The morphological characteristics of powdery mildew fungus on the inoculated plants were identical to the isolate collected from the garden, with the same sequence following PCR as above, thus fulfilling Koch's postulates. G. latisporus has been previously reported on common sunflower from Washington and California states (Qiu et al., 2020), however, this is a first report from Arizona. Although sunflower is not a major crop in Arizona, the wild sunflower population could serve as reservoir for the spread of the disease.
Braun, U. and Cook, R. T., 2012. The Taxonomic Manual of the Erysiphales (Powdery Mildews). CBS Biodiversity Series No. 11. CBS, Utrecht, Netherlands.
Carbone, I. and Kohn, L. M., 1999. Mycologia 91:553-556. https://www.tandfonline.com/doi/abs/10.1080/00275514.1999.12061051
Qiu, P. L., et al. 2020. BMC Microbiology 20:51. https://bmcmicrobiol.biomedcentral.com/articles/10.1186/s12866-020-01731-9
Scholin, C. A., et al. 1994. Journal of Phycology 30:999-1011. https://doi.org/10.1111/j.0022-3646.1994.00999.x
Tamura, K., et al. 2021. Molecular Biology and Evolution 38:3022- 3027. https://doi.org/10.1093/molbev/msab120
White, T. J., et al. 1990. Page 315 in: PCR Protocols: A Guide to Methods and Applications. M. A. Innis et al., eds. Academic Press Inc., New York.
The author(s) declare no conflict of interest.
Keywords: Sunflower, Helianthus annuus, fungi, powdery mildew, pathogenicity, Golovinomyces latisporus
Figure legend
Supplementary Figure 1. Signs of naturally occurring powdery mildew infection on Helianthus annuus caused by Golovinomyces latisporus (A, B); conidiophores and chains of conidia on adaxial leaf surface (C, D); and conidia observed using light microscope (E).
Supplementary Figure 2. Phylogenetic analysis based on the combined sequence datasets of ITS+28S rDNA+IGS+TUB2+CHS1 of the Golovinomyces complex. The isolate sequenced in this study is Yuma. G. circumfusus 'HAL 3300 F' was used as the taxonomic outgroup to root the tree. The phylogenetic tree was generated using the MEGA v. 11 software (Tamura et al., 2021) with the maximum-likelihood method. Bootstrap values based on 1000 replications are indicated above/below the branches.
What Ag Automation/Mechanization Technologies Would You Like to Know More About?
Based on last week's weather, it's officially summer in my book. Things seem to be slowing down, so I thought I'd change pace this week and take the opportunity to ask you, the readers of this newsletter, if there are any ag automation/mechanization topics you would be interested in hearing more about. I am happy to do some research and share the findings in future articles. Drop me a line at siemens@cals.arizona.edu or feel free to call me at 928.782.5869. I'd love to hear from you.
Fig. 1. Futuristic farming. (Image credits: Emery Reddy, Seattle, WA.)
Buffalobur Nightshade (Solanum rostratum)
One of our local PCAs (Pest Control Advisors) in Yuma, Arizona found Buffalobur nightshade last week in an artichoke field in the area.
Buffalobur is a summer annual that belongs to the Solanaceae family. Another weed from this family commonly seen is Silverleaf nightshade (Solanum eleagnifolium). Unlike Silverleaf that has a purple flower, Buffalobur has a yellow flower. Leaves are deeply lobed from half to all the way to the midrib resembling small watermelon leaves. Sometimes toothed, the leaves are alternate on the stems with star-shaped hairs and are TOXIC TO HUMANS AND LIVESTOCK.
Animals would have to consume 0.1-0.3 % of their bodyweight to have toxic effects. Goats and sheep are more resistant than cattle to the weed's glycoalkaloid solanine, which is the toxic agent [3].
Its named Buffalobur for the prickly burs that got entangled to the fur of the bisons. Plants can reach up to 60 cm tall [2].
This weed is a natural host of the Colorado Potato Beetle (Leptinotarsa decemlineata). It is also an alterative host of some mosaic virus affecting potato, tomatoes, and alfalfa. Additionally, it can harbor nematodes that are damaging to tomatoes [1].
According to the National Noxious Weed Control Board 2,4-D and Banvel are herbicides that provide complete control of this weed [3].
If infestations are small, it is also recommended to remove plants wearing sturdy gloves. The objective is to prevent the mature burs from releasing seeds when dehiscence occurs increasing the infestation.
Thank you for sharing your findings with the University of Arizona Vegetable IPM Team.
Image Courtesy of Jim Daily
Joseph M. DiTomaso, Evelyn A. Healy (2007). Weeds of California and Other Western States. University of California, Agriculture and Natural Resources, Publication 3488.Vol 2, p. 1551.
Retrieved from: https://www.britannica.com/plant/buffalo-bur
Retrieved from: https://www.nwcb.wa.gov/images/weeds/BUFFALOBUR-BROCHURE_Lincoln.pdf
Area wide Insect Trapping Network (August 10, 2022)
Area wide Insect Trapping Network VegIPM Update, Vol. 13, No. 16, Aug 10, 2022
CEW moth counts decreased considerably y in the past 2 weeks and about average for late summer
Trap counts stay active in some locations (Yuma Dome Valley and Wellton) particularly near alfalfa
Cabbage looper numbers remain low consistent previous years.
DBM moths were not caught in any trap since June; average for this time of the year.
Adult movement decreased in past 2 weeks consistent with previous years
Thrips adults decreasing in most locations, and trending comparable to previous years.
Aphid movement is absent and consistent with what we typically see during the summer.
Adult activity has highest in Wellton and Dome Valley, and slightly above average for early August

redpajama_set_name: RedPajamaCommonCrawl


The UnDiet Cookbook by Meghan Telpner + Win a copy of your own!
What do you look for in a cookbook? Do-able, nourishing recipes you can feel good about eating and sharing, gorgeous photography that makes your mouth water, a strong point of view that gives you a real sense of the person and the expertise behind them? The UnDiet Cookbook by nutritionist Meghan Telpner is all that (oh yeah!) and much more. Okay I'm gushing I know, but when you're in love, you want to sing it from the rooftops! And I heart this book. Meghan's philosophy is all about making plantiful (that is to say, plant-based) choices and living a more joyful, vibrant, intentional life. "Let's aim to wake up feeling happy and feeling good, and to do what we can to make that happen," Meghan writes, "whether that means dining on green juice, smoothies, and incredible salads, or having a night of celebration where we raise a glass to those we love most and indulge in a treat without attaching the word cheat to it." Huzzah!
But don't mistake that for a free pass to smoke the occasional cigarette or binge on toxin-laden junk food. "The all things in moderation concept is broken," Meghan says, "and there are some things that really need to fall into the never ever category." When we know better, we should do better, since the choices we make affect other people and the planet.
All of Meghan's recipes are gluten- and dairy-free, with variations for nut-free, soy-free, grain-free and protein-powered lifestyles (e.g. from animals raised in a sustainable, cruelty-free way without antibiotics and hormones).
I made four recipes, starting with the cucumint lemonade in the first photo. The combination of fresh mint, lemon, cucumber and honey was refreshing and spring-y, perfect for an at-home spa day. I only wish there'd been a suggestion for something to do with the cucumber and mint pulp, and would probably leave it in next time instead of putting it in the compost.
The sacred scramble was next up, with tofu, spinach, green pepper, onions, turmeric and sea salt tossed together for a quick breakfast, lunch or dinner. The recipe also called for sundried tomatoes and red pepper, only I'd forgotten those at the grocery store. (What's good for memory loss?) It was light and satisfying, the tofu a refreshing change from eggs ('tho you can use those instead) and the tumeric giving it the warmth and depth to make it a comforting dish on a cold winter's day.
The sweet potato zucchini hash brizzles are ridiculously good. I used up my zucchini in the first batch so you're seeing kale in the second batch here, which we enjoyed just as well. They're like baked latkes and delicious with apple sauce and hot sauce ('tho maybe not at the same time).
And last, the creamed mushroom love soup. Onions, celery, carrots, mushrooms and turmeric are pureed into a thick and satisfying potage (a fancy word for thick soup) that I'll be making again and again.
Thoughtful and playful at the same time, The UnDiet Cookbook is an informative and entertaining read. Meghan lives by the credo, "Today is the day, make it ridiculously Awesometown!" Her enthusiasm, encouragement and zip-i-dee-doo-dah zest for life will make you say "I want what she's having!" and thanks to the book, you can.
The giveaway is open to Canadian residents (excl. Quebec) 18+ and ends at midnight EST on February 21, 2016.
Update February 22, 2016: Congratulations Angela M!
Penguin Random House Canada sent me a copy of The UnDiet Cookbook in exchange for an honest review. All photos and opinions are my own. I love sharing my favourite books with you!
PreviousThe Piano Maker by Kurt Palka + Win 1 of 5 copies!
Here's my last daily tweet.
Thanks again for having this giveaway.
From this review and previewing it out on amazon, I love this book! It's definitely more than just a cookbook. Would love this!


Not much compares to the pleasure of listening to some favorite tunes while being out on the water. Perhaps you want to create a party atmosphere for a few friends or just chill with a good podcast. If your boat stereo is older or you have resorted to using a separate portable model, you will find a current model marine radio installation will ramp up your on-board listening experience considerably.
You can take advantage of the latest technologies including Bluetooth connectivity which has been incorporated in the last few years. It is now simple to connect your smartphone and playback your current music library or integrate your streaming services seamlessly into your boat's entertainment system.
If you are looking for a new marine stereo installation, then take a look at these top models that we recommend. Imagine Marine is also available to advise you on the best stereo for your particular marine vessel, and also offers installation services.
This is a small high-end in-dash stereo which is easy to install and a good option for retrofits. Don't let its size fool you though. This is a powerful stereo unit that has top features including built-in Bluetooth connectivity which can be used with the FusionLink™ app (Apple or Android); AM/FM tuner; 4x 50W output; rear USB connection; and a 128×64 monochrome LCD display.
Properly installed this unit's front panel is waterproof (IPx7) and perfect for the marine environment. It can be installed either in a traditional flush fit or with a flat surface finish in a glass helm.
This Kenwood stereo is a solid mid-range option, which offers great features and will satisfy the needs of many boaters. No matter what your media of choice is, this unit will be able to handle it. If style is important to you, you'll be happy to know that the LEDs can be adjusted to match your dash lighting.
Unlike many stereos, this unit also includes a CD player (MP3/WMA/AAC/WAV/FLAC files), along with its AM/FM tuner, Bluetooth connectivity, and ID-3 display. Using the Android or iPhone app, wireless playback is supported. It is SiriusXM satellite radio ready, and capable of playing Pandora/iHeart Radio/iTunes Radio/Spotify via apps.
It also comes with a rear wired BT microphone, dual phone connections and has 4 x 50W output.
Whilst this unit does have conformal coating to resist corrosion, it is not recommended for installation with direct exposure to the elements, so might not suit all boats. Consider getting a protective cover to ensure the stereo lasts well.
If you can accommodate a custom sized digital receiver installation in your boat, then this Infinity model is a top choice. It is a compact marine stereo with a great intuitive to use design and an IP66 waterproof face. This unit is tough and lasts well.
It boasts a solid aluminum chassis, AM/FM Radio, supports Bluetooth streaming, MP3, auxiliary port and USB port with charging capabilities. It outputs 4 x 50W, and RMS: 4x 20W for additional speakers, plus has 2V preamp outputs so you can connect an amplifier.
If you don't have the helm space available, then this premium black box stereo might be the perfect solution. Mount the box out of the way, then place the large wired LCD remote wherever is convenient and control your system from there.
You want it chilled at the helm, and a party down below: no problem. A great feature of this black box entertainment system is its Multi-Zone™ technology, which offers the ability to separately program three different areas.
It also has all the features you'd expect from a premium product: FUSION-Link™ via your boat's NMEA 2000 control, AM/FM radio, Bluetooth audio streaming, supports Apple iOS and MTP Android/WM playback, USB and auxiliary cable ports.


text:
Forest Falls
Preparing for a Parlour gig is equal parts excitement and slight trepidation; especially as an artist/host. Exposing your art to a willing and gorgeously quiet audience in the raw intimacy of your own lounge room is confronting, yes, but it's also incredibly rewarding. It gives a sparkling new life to your work, presenting it in the very context in which it was born: your own space. It was an experience my band, Forest Falls will look to recreate in the future.
On the day of the gig, we decked out the lounge room in fairy lights and got the mulled wine happening on the stove. Our aim was to invite people to experience the space as their own; to feel comfortable and relaxed and have a simple night in.
Matt and the Parlour crew were spectacular to work with. They helped us shape the experience to our liking and sell it as a concert, with creative control and the modest but ultimately very welcome profits landing almost entirely in the hands of the artist. Parlour's approach is a rare but welcome addition to the music industry; there's no "middle man" and as a host/artist you're charged with the exciting responsibility of creating an experience for your audience, which is exactly what we're born to do anyway.
Review by Lucy Rash
Photos and Video by Glenn Luck
More music and news from Forest Falls available at www.forestfallsband.com
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