Corcoran v. United States

• Court: Court of Appeals for the First Circuit
• Decided: October 29, 1992
• Docket: 92-1016
• Status: Published

Opinion

USCA1 Opinion

        October 29, 1992        [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

No. 92-1016

                                 MICHAEL F. CORCORAN,

                                Plaintiff, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                       [Hon. Gene Carter, U.S. District Judge]
                                          ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                           Campbell, Senior Circuit Judge,
                                     ____________________
                               and Cyr, Circuit Judge.
                                        _____________

                                 ____________________

            Michael F. Corcoran on brief pro se.
            ___________________
            Richard  S.  Cohen,  United  States  Attorney,  Nicholas M.  Gess,
            __________________                              _________________
        Assistant United States Attorney, and Margaret D. McGaughey, Assistant
                                              _____________________
        United States Attorney, on brief for appellee.

____________________

____________________

Per  Curiam.   Pro  se appellant  Michael Corcoran
                       ___________

            appeals from a district  court judgment dismissing his motion

            to vacate his conviction and  sentence under 28 U.S.C.  2255.

            We affirm.

                                          I.

                       Corcoran  was convicted  upon pleading  guilty  to

            three  counts of  a superseding  indictment that  charged him

            with conspiring to possess  with intent to distribute cocaine

            and  with  the  substantive  offenses  of   distributing  and

            possessing with intent to  distribute cocaine between June 13

            and   August  13,   1990.     See   21  U.S.C.     841(a)(1),
                                          ___

            841(b)(1)(C),  846.   The charges  stemmed  from transactions

            between  Corcoran and  various  codefendants  and  undercover

            agents  during that  time.   Also indicted  and convicted  on

            guilty  pleas   were  five  other  members   of  the  alleged

            conspiracy:     Peter  Garuti,  Carmen  Corcimiglia,  Deborah

            Corcimiglia, and Warren Williams.1   

                       The   indictment  generally  alleged  that  Garuti

            obtained cocaine from sources  outside Maine and  distributed

            it   to   Corcoran   and  Williams.      Corcoran   allegedly

            redistributed the cocaine to Carmen Corcimiglia.  On December

            13,  1990,  Corcoran pled  guilty  to the  general  charge of

            conspiracy  (count  one)  and  the  substantive   charges  of

____________________

            1.  Similar charges against a fifth defendant, George  Vokey,
            were dismissed.

                                         -2-

distributing  cocaine on  September  6 and  12, 1990  (counts

            thirteen  and  sixteen).     There  was  no  plea  agreement.

            Thereafter, the  probation department prepared  a presentence

            report which attributed 1015.53  grams of cocaine to Corcoran

            and recommended a  base offense  level of 26.   The  district

            court  held  a  presentencing  conference  on  May  7,  1991.

            Defense  counsel objected to the  1015.53 grams and argued in

            favor of  603.16  grams, although  this  did not  change  the

            applicable  base offense  level.   The  government agreed  to

            stipulate  to this  amount.   On May  21, 1991,  the district

            court held  a sentencing hearing and  accepted a stipulation,

            signed by Corcoran and both counsel, which specified that the

            total drug  quantity applicable to Corcoran  was 603.16 grams

            of a mixture  or substance containing cocaine.   The district

            court  sentenced Corcoran  to 59  months imprisonment  plus 4

            years  of supervised  release,  and imposed  $150 in  special

            assessments.  Corcoran did not appeal his sentence.2  

                       In October 1991 Corcoran filed a motion  to vacate

            his  conviction and  sentence under  28 U.S.C.    2255.   The

            motion asserted  three grounds  for relief.   First, Corcoran

            claimed that  he did not  understand the consequences  of his

            plea  because  he  was  not  made  aware  that  the   federal

            Sentencing   Guidelines  mandated  the   inclusion  of  other

____________________

            2.  The prison sentences of  the other defendants ranged from
            12 to 54 months. 

                                         -3-

defendants'  conduct  in  calculating   Corcoran's  "relevant

            conduct"  for sentencing  purposes.   In elaborating  on this

            claim, Corcoran specifically complained that his base offense

            level (26) included  drug quantities attributed  to him as  a

            result of a statement made  by codefendant Warren Williams to

            DEA  Agent Stephen Georges.  This  statement was not produced

            to  Corcoran's attorney  until  after  Corcoran pled  guilty.
                                            _____

            Corcoran claimed that consequently, when he changed his plea,

            he  did not know that the drug quantities identified in Agent

            George's  report   would  be  included   in  calculating  his

            sentence.  This, Corcoran  asserted, rendered his guilty plea

            invalid.   Corcoran's second    2255  claim alleged  that his

            plea was  invalid because the prosecution  failed to disclose

            Agent  Georges'  report  before Corcoran  changed  his  plea,

            thereby  violating Corcoran's  right to  exculpatory evidence

            and discovery.3  Finally,  Corcoran alleged that his attorney

____________________

            3.  Corcoran's  2255  motion incorporated  a letter  that his
            counsel  sent   to  the  Assistant   United  States  Attorney
            prosecuting the case. The letter stated, in relevant part:

                   I  was quite disturbed  to receive your December
                   17, 1990  letter enclosing the  four page  typed
                   report of Agent Georges which indicates that  it
                   was prepared  on October 3,  1990.  That  report
                   contains   information   which  was   not   made
                   available  to   the  defendant   prior  to   his
                   decision  to   plead  guilty  and  which  in  my
                   opinion  should have  been.   While  recognizing
                   that  this  delay is  certainly  not  your fault
                   personally,  I   do  feel  it   is  a  discovery
                   violation and  prejudicial to the Defendant  and
                   I am requesting  that this report not be used in
                   connection  with any  aspect  of  Mr. Corcoran's

                                         -4-

rendered  him  ineffective  assistance  by  stipulating  that

            603.16 grams of cocaine were attributable to Corcoran instead

            of   challenging  the   quantities   reported  in   Williams'

            statement.    Corcoran alleged  that  his  counsel failed  to

            assure that  Corcoran's sentence reflected his  minor role in

            the  conspiracy.4   Corcoran also  alleged that  his attorney

            failed  to conduct  full discovery,  and to  raise diminished

            capacity and entrapment defenses, and erroneously advised him

            not to appeal his sentence.

                       After   the  government   filed   an   answer  and

            memorandum  in opposition,  the district court  dismissed the

             2255 motion on the grounds that the record of  the change of

            plea hearing conclusively  negated Corcoran's assertion  that

            his  guilty plea  was  unlawfully induced  and not  knowingly

____________________

                   sentencing.

            Also attached to the   2255 motion was a letter  from defense
            counsel which forwarded Agent Georges' report to Corcoran and
            observed:

                   I  am sure  that you will  be as  disturbed as I
                   was  by the  fact  that  we just  received  this
                   report ... but this is something I will  have to
                   take up  with  the  U.S.  Attorney  and  perhaps
                   eventually with the Judge. ...

4.  Corcoran claimed that his  base offense level should have
            been  20,  the  level that  would  have  applied  had defense
            counsel, in addition to securing the government's stipulation
            to  603.16  grams,  successfully  excluded  the 368.55  grams
            identified in Williams' statement.   Corcoran argues that his
            counsel  should have insisted that his sentence be limited to
            33 months.   

                                         -5-

entered.  The court ruled that Corcoran had no right to Agent

            Georges' report  before entering  his guilty plea  because it

            was  not  discovery material  but rather  a  DEA report  on a

            codefendant to  which Corcoran had no right  under the Jencks

            Act.5    The court  concluded that  the  absence of  merit in

            Corcoran's   first  two   claims  defeated   his  ineffective

            assistance  of counsel claim.   From this order, Corcoran has

            taken a timely appeal.

                                         II.

                       On  appeal,  Corcoran  seeks  to  vacate his  plea

            and/or sentence essentially because he agreed to plead guilty

            based  on  an underestimate  of  how  much cocaine  he  would

            ultimately be held responsible for, an underestimate fostered

            by  the government's  failure  to produce  and his  counsel's

            failure  to  discover Agent  Georges' summary  of codefendant

            Williams' post-arrest statement.  We conclude that Corcoran's

             2255 claims  were properly dismissed  without an evidentiary

            hearing  because "'it  plainly appears  from the face  of the

            motion and any annexed exhibits and  the prior proceedings in

            the case  that [Corcoran]  is not entitled  to relief...  .'"

            Myatt  v.  United States,  875 F.2d  8,  11 (1st  Cir. 1989),
            _____      _____________

____________________

            5.  The  Jencks Act,  18 U.S.C.   3500(a), in  relevant part,
            provides that, "no statement  or report in the possession  of
            the United States which  was made by a Government  witness or
            prospective  Government  witness (other  than  the defendant)
            shall  be  the  subject   of  subpena  (sic),  discovery,  or
            inspection  until  said  witness  has  testified  on   direct
            examination in the trial of the case." 

                                         -6-

(quoting Rule 4(b) of the Rules Governing Proceedings in U.S.

            District  Courts  under 28  U.S.C.   2255).    We sketch  the

            background.

                       Agent Georges' report  was a typed summary of  the

            post-arrest  statements  of   codefendant  Warren   Williams.

            Paragraphs 9 through 12 of the report indicated that Williams

            introduced  Corcoran to  codefendant  Peter  Garuti and  that

            Williams personally sold Corcoran a total of  6 ounces (170.1

            grams)  of cocaine  that Williams  had procured  from Garuti.

            Williams further related that he witnessed Corcoran  purchase

            an  additional 7  ounces (198.45  grams) of  cocaine directly

            from Garuti  and estimated  that, based on  his conversations

            with  these defendants,  Corcoran had  completed at  least 10

            additional  transactions with  Garuti, although  Williams did

            not witness them.

                       Corcoran's   counsel  filed   a  pre-trial  motion

            seeking  all defendants'  statements under  Fed. R.  Crim. P.

-7-

16(a)(1)(A).6    The  government's  response to  this  motion

            stated, 

                       Although Rule 16(a)(1)(A) ... does not
                       require  the production  of statements
                       as to  coconspirators or codefendants,
                       the  United  States  will  not quibble
                       over  such issue.   The government has
                       agreed to and has in fact, provided to
                                 ____________________________
                       all defendants any statement  which is
                       ______________________________________
                       Rule 16(a)(1)(A) . . . material  as to
                       ______________________________________
                       any  defendant  .   .  .   [including]
                       ______________             ___________
                       reports   detailing    statements   to
                       ______________________________________
                       arresting   officers   by   defendants
                       ______________________________________
                       Williams   and   Vokey.      (emphasis
                       ________
                       supplied). 

            In conjunction with this response, which was filed almost two

            months before  Corcoran  changed  his  plea,  the  government

            produced the  handwritten notes  of another DEA  agent, Agent

            Bryfonski, who was also present for Williams' debriefing.

____________________

            6.    Federal Rule  of  Criminal Procedure  16(a)(1)(A)  then
            provided, in relevant part, that:

                   Upon  request  of  a  defendant  the  government
                   shall  permit the defendant to  inspect and copy
                   ...:   any   relevant   written   or    recorded
                   statements  made  by  the  defendant, or  copies
                   thereof,  within  the  possession,  custody   or
                   control  of  the government,  the  existence  of
                   which  is  known,  or by  the  exercise  of  due
                   diligence may become known, to the  attorney for
                   the  government;  the  substance  of   any  oral
                   statement  [which  the  government  intends   to
                   offer  in  evidence   at  trial]  made  by   the
                   defendant  whether  before or  after  arrest  in
                   response  to  interrogation  by any  person then
                   known  to  the  defendant  to  be  a  government
                   agent; and  recorded testimony of the  defendant
                   before  a  grand   jury  which  relates  to  the
                   offense charged... .   

-8-

Agent  Bryfonksi's  report  was  not  as  detailed  as  Agent

            Georges' report.   While  both reports related  that Williams

            introduced Corcoran to Garuti and sold 6 ounces (170.1 grams)

            of cocaine  to Corcoran,  Agent Bryfonski's report  failed to

            describe the  other  cocaine purchases  (partially  totalling

            198.45 grams) that Williams attributed to Corcoran.  

                       Thus, the  record discloses  that certain  details

            concerning Williams' post-arrest statements were  produced to

            Corcoran's  counsel before  Corcoran changed  his plea.   The

            additional  details in  Agent  Georges' report  were produced

            four days  after Corcoran  pled guilty and  some five  months

            before  Corcoran's  sentencing.   Corcoran  did  not move  to

            withdraw his  plea nor appeal his sentence.   The presentence

            report (p. 24, Objection #7) indicates that Corcoran admitted

            purchasing the  specific quantities (totalling  368.55 grams)

            identified  in Agent  Georges'  report.   The ten  additional

            transactions Williams accused Corcoran of completing directly

            with Garuti  were not part of the district court's assessment

            of Corcoran's relevant conduct.  We analyze Corcoran's claims

            in light of this record.

                                         III.

                       We emphasize that this  is not a  case involving a

            plea  agreement.   Moreover,  Corcoran has  not alleged  that

            anyone (defense  counsel included), made any  promises to him
            ______

            concerning  the likely  sentence he  would receive.   Rather,

-9-

Corcoran's  claim is  that the  government failed  to produce

            certain  information  before he  changed  his  plea, and  the

            absence of this information now renders his plea invalid.

                       "In the absence  of an explicit plea agreement,  a

            court  must  distinguish  between   the  situation  where   a

            prosecutor   omits  information,   and   where  he   provides

            inaccurate  or misleading  information,  in  securing  guilty

            pleas."    Wellman v.  Maine, 962  F.2d  70, 72-73  (1st Cir.
                       _______     _____

            1992).  While the  government's response to defense counsel's

            discovery motion might reasonably have led counsel to believe

            that  the  government  had  produced  all  the  codefendants'

            statements it had, we think this case, like Wellman, involves
                                                        _______

            a  simple inadvertent  omission  by the  prosecutor.7   Under

            these  circumstances, "a  defendant  seeking to  set aside  a

            guilty  plea  must  at  the  very  least  show  that  correct

            information  would have made a  difference in his decision to

            plead  guilty."  Id. at  73, (citing Cepulonis  v. Ponte, 699
                             ___          ______ _________     _____

            F.2d  573, 577  (1983)).   On this  record, we  cannot accept

            Corcoran's conclusory assertion - made for  the first time on

            appeal - that he would  not have pled guilty had he  known of

            Agent Georges' report.  Corcoran cites the report's reference

            to the facts that Williams introduced Corcoran to Garuti  and

____________________

            7.  This conclusion is supported by defense  counsel's letter
            to  the prosecutor,  which  observed that  the  delay in  the
            production of Agent Georges'  report was not the prosecutor's
            fault.

                                         -10-

initially  procured  cocaine   for  Corcoran,  as   "evidence

            favorable"  to Corcoran.  While such evidence might have been

            used  to portray Williams as  the more culpable  of the two,8

            the  substance of  Georges' report  was far  more inculpatory

            than exculpatory of  Corcoran.  The report  provided no basis

            to  construct a  defense  that might  have  been a  plausible

            alternative  to  pleading guilty.    Moreover,  this part  of

            Williams' statement  had, in  fact, been produced  to defense

            counsel  in Agent  Bryfonski's  report.   Where Corcoran  had

            ample time to challenge any inaccuracies in the report before

            sentencing,   and  the  allegedly   exculpatory  portions  of

            Williams' statement  were available to defense counsel before

            Corcoran changed his  plea, Corcoran's conclusory  allegation

            that  he was  prejudiced  by the  tardy  production of  Agent

            Georges' report is conclusively refuted by the record.

                       The district  court  dismissed this  claim on  the

            ground that Agent Georges' report was not subject to pretrial

            discovery under the Jencks Act.  While this court has yet  to

            address   the  issue,   other   circuits   have   held   that

            coconspirators' statements are not discoverable under Fed. R.

            Crim. P. 16(a)(1)(A).   See, e.g., United States v.  Orr, 825
                                    ___  ____  _____________     ___

            F.2d 1537,  1541 (11th Cir. 1987); United  States v. Roberts,
                                               ______________    _______

____________________

            8.  We  note  that  at Corcoran's  sentencing  the prosecutor
            expressly  stated  that,  if  anything,  Corcoran   was  less
            culpable  than Williams.  (Tr. 37).   Corcoran's sentence was
            longer than Williams because  Corcoran had a more significant
            criminal history and had not cooperated with the government. 

                                         -11-

811  F.2d 257,  258 (4th Cir.  1987) (en  banc).   See also 8
                                                               ___ ____

            Moore's   Federal  Practice,    16.04[1][a],  p.   16-64  ("A
                      _________________

            defendant may discover only his  own statements, not those of

            a  codefendant." (footnote  omitted)).   We need  not resolve

            this  point  on  appeal.    Insofar  as  Corcoran  asserts  a

            violation of  Rule 16(a)(1)(A), his  claim is subject  to the

            general  rule  that  "nonconstitutional  claims  may  not  be

            presented in  a section  2255 proceeding unless  'the claimed

            error  of  law  [represents]  "a  fundamental   defect  which

            inherently results  in a complete  miscarriage of justice."'"

            Barrett v. United States, 965 F.2d 1184, 1188 (1st Cir. 1992)
            _______    _____________

            (citations omitted).   On this record, we  have no hesitation

            in  holding that  the government's  failure to  produce Agent

            Georges' report before Corcoran pled guilty did not result in

            a miscarriage of justice.      

                       To be sure, a  defendant who pleads  guilty has  a

            right to know the  nature of the charges against him  and the

            possible  punishment he faces.   Iaea v. Sunn,  800 F.2d 861,
                                             ____    ____

            866  (9th Cir.  1986).   Toward that  end, Fed.  R.  Crim. P.

            11(c)(1)   requires  that  district   judges  determine  that

            defendants understand:

                       .  . .  the mandatory  minimum penalty
                       provided  by  law,  if  any,  and  the
                       maximum  possible penalty  provided by
                       law,  including  the  effect   of  any
                       special  parole or  supervised release
                       term,  the  fact  that  the  court  is
                       required  to  consider any  applicable
                       sentencing  guidelines but  may depart

-12-

from   those  guidelines   under  some
                       circumstances,  and, when  applicable,
                       that  the  court  may  also  order the
                       defendant to make  restitution to  any
                       victim of the offense; . . .

                   The  record  of  Corcoran's  change  of  plea  hearing

            establishes  that   the   district  judge   satisfied   these

            requirements.   He advised  Corcoran that upon  conviction he

            would be subject to  imprisonment up to twenty years,  a fine

            of  up  to $1  million (or  any  combination of  the  two), a

            minimum  of  three  years  supervised release,  and  $150  in

            special felony  assessments.  Corcoran  acknowledged that  he

            understood these penalties.  He also acknowledged that he had

            conferred with counsel concerning  the likely application  of

            the Sentencing Guidelines to his case.  Although that "likely

            application"  was   not  discussed   in  terms   of  specific

            guidelines,  Corcoran  acknowledged  that he  understood  the

            court  could not determine  the applicable guideline sentence

            until after  the presentence  report was prepared.   Corcoran
                  _____

            denied  that any promises had been made to him concerning the

            sentence the court would impose.   Having reviewed the entire

            record, we are satisfied that Corcoran's plea was a voluntary

            and intelligent act.9  

____________________

            9.  Rule  11  does  not  require district  courts  to  advise
            defendants how their  "relevant conduct" might be  determined
            under the  Sentencing Guidelines.   Such a  requirement often
            would be unworkable, for, as the  Advisory Committee notes to
            the   1989  Amendment  to  Rule  11   observe,  "it  will  be
            impracticable, if  not impossible, to  know which  guidelines
            will be relevant  prior to the  formulation of a  presentence

                                         -13-

Finally, Corcoran has  failed to state a basis  to

            set  aside   his  plea  based  on   the  alleged  ineffective

            assistance  of his  counsel.   Corcoran  argues that  defense

            counsel  led  Corcoran  to  believe  he  would  only  be held

            responsible for  cocaine quantities related to  the counts to

            which  he pled guilty and that  counsel's failure to discover

            Agent Georges'  report resulted  in a concomitant  failure to

            advise Corcoran precisely how his "relevant conduct" would be

            determined.   But the  record discloses that  defense counsel

            discovered  part of  the  quantities Williams  attributed  to

            Corcoran through Agent Bryfonski's report.  Even if we assume

            that, absent Agent Georges'  report, defense counsel erred in

            estimating   the  applicable  guideline,  a  mere  inaccurate

            prediction  as  to a  defendant's  likely  sentence does  not

            constitute ineffective assistance.  See,  e.g., United States
                                                ___   ____  _____________

            v.  Arvanitis,  902 F.2d  489,  494 (7th  Cir.  1990); United
                _________                                          ______

            States v. Pallotta, 433 F.2d 594, 595 (1st Cir. 1970).  Where
            ______    ________

            Corcoran  admitted purchasing  the  quantities identified  in

            Agent Georges' report, there was no basis for defense counsel

            to challenge their  inclusion at sentencing.  Indeed,  such a

            challenge  would have  been inconsistent  with the  notion of

            acceptance of responsibility,  for which Corcoran received  a

            two level downward adjustment.   We also discern no  error in

            defense  counsel's  advice  that  Corcoran  not  appeal   his

____________________

            report and resolution of disputed facts... ." 

                                         -14-

sentence.  Corcoran's remaining ineffective assistance claims

            are  patently  meritless.    While  Corcoran's   2255  motion

            asserted that he  was drug dependent when  he committed these

            crimes, the presentence report contradicts this assertion and

            indicates that, despite a history  of drug and alcohol abuse,

            Corcoran  had  stopped drinking  in  1987  and stopped  using

            cocaine  in June 1990.   Defense counsel's alleged failure to

            explore a  diminished capacity or entrapment  defense was not

            ineffective assistance.10 

                       Judgment affirmed.
                       _________________

____________________

            10.  Corcoran does not allege that he was under the influence
            of drugs or alcohol when he changed his plea.

                                         -15-