United States v. Conway

• Court: Court of Appeals for the First Circuit
• Decided: April 12, 1996
• Docket: 95-2232
• Status: Published

Opinion

USCA1 Opinion

April 12, 1996

                            UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 95-2232



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                   JOHN J. CONWAY,



                                Defendant, Appellant.



                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE



                 [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
                                                 ___________________



                                 ____________________



                                        Before



                                 Selya, Circuit Judge,
                                        _____________



                            Aldrich, Senior Circuit Judge,
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                              and Lynch, Circuit Judge.
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                                 ____________________


Barry T. Albin with whom Peter  A. Gaudioso and Wilentz, Goldman &
            ______________           __________________     __________________

        Spitzer were on brief for appellant.
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            Peter E. Papps,  Assistant United States Attorney, orally;  Donald
            ______________                                              ______

        A.  Feith, Assistant United States Attorney, with whom Paul M. Gagnon,
        _________                                              ______________

        United  States Attorney,  and  Michael J.  Connolly, Assistant  United
        _______________________        ____________________

        States Attorney, were on brief for appellee.



                                 ____________________



                                    April 11, 1996

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ALDRICH, Senior Circuit Judge.  John J. Conway pled
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            guilty to  one count  of conspiracy to  defraud the  American



            Honda Motor Company  in violation  of 18 U.S.C.     1343  and



            1346.  He now appeals his sentence, specifically the  court's



            refusal  to grant the government's motion on his behalf for a



            four  level downward  departure  for substantial  assistance.



            U.S.S.G. 5K1.1.  Normally an appeal is not available for such



            a broadly discretionary  decision, United States v.  Mariano,
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            983  F.2d  1150, 1153-54  (1st Cir.  1993),  but there  is an



            exception in case of an error of law.  Id. at 1153; 18 U.S.C.
                                                   ___



              3742.1  This is  such a case.  Defendant makes  a colorable



            claim  that his Fifth Amendment rights to due process and not



            to be made a  witness against himself were violated  when the



            court based its  decision to deny downward  departure, and to



            give  the  maximum sentence  under  the  applicable guideline



            range,  on self-incriminating  information  he  had  divulged



            pursuant to a plea agreement  to provide the government  with



            substantial assistance in exchange  for immunity and a motion



            for downward departure.2   Noting the standard provision that



            it was  not bound to accept  the government's recommendation,



            Mariano, 983  F.2d at  1155, the  court, while  admitting the
            _______



                                
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            1.  Appellate jurisdiction exists  for sentences "imposed  in

            violation  of  law."   18 U.S.C.     3742(a)(1).   See United
                                                               ___ ______

            States v. Drown, 942 F.2d 55, 58 and n.6 (1st Cir. 1991).
            ______    _____



            2.  The possibility  that in  its discretion the  court might

            have reached the same result absent any error does not defeat

            jurisdiction.  See Drown, 942 F.2d at 60.
                           ___ _____



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sufficiency  of  defendant's   disclosures  to  warrant   the



            departure, denied  it on the ground that it would lead to too



            light  a sentence  for a  defendant so  revealed.   Defendant



            objects  that the effective "countervailing factors" found by



            the court to "militate against granting a motion for downward



            departure" came to the court's attention solely by  reason of



            disclosures he had  provided in exchange  for a promise  that



            they would not be  used against him.   We concur, and  remand



            for resentencing.



                      The plea agreement read as follows:



                      No truthful information  provided by  Mr.

                      Conway  to  government  attorneys or  law

                      enforcement  officers,  pursuant to  this

                      agreement, or any information directly or

                      indirectly derived from such information,

                      will be  used against Mr.  Conway by  the

                      government   provided  that   Mr.  Conway

                      complies   with   the   terms   of   this

                      agreement.  As to information provided by

                      Mr. Conway  regarding unlawful activities

                      involving himself and others that was not

                      known to the government prior to entering

                      into  this  agreement,  such  information

                      shall  not be  used  in  determining  the

                      applicable  guideline range,  pursuant to

                      U.S.S.G.   1B1.8.



                      It is clear, first of all, that the  plea agreement



            does  not  bind   the  court  "to  comply  blindly  with  the



            prosecutor's wishes,"  Mariano, 983  F.2d at 1155,  and that,
                                   _______



            except  as   restricted  by  the  Guidelines,  other  federal



            statutes,  or  the  United  States  Constitution,  the  court



            "retains  broad discretion  to  exhume  factors unrelated  to



            substantial   assistance   before   burying  the   [guideline


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sentencing range]."  Id. at 1156-57.  We also  agree that the
                                 ___



            language   of  the  agreement,   as  written,   deserves  the



            interpretation the court  gave it at the  time of sentencing:



            defendant  received  a  promise  that,  (1)  the  information



            disclosed  would not be used against him by the government --
                                                     _________________



            e.g., as a basis for future prosecution, for refusing to make



            a motion for  downward departure, or for any other government



            action  against  him --  and, (2)  it  would not  be  used in



            calculating  his guideline range -- no more.  As written, the



            agreement does not preserve the blanket protection  defendant



            claims he bargained for  in exchange for waiver of  his Fifth



            Amendment right not  to be  a witness against  himself.   See
                                                                      ___



            United States v.  Hogan, 862  F.2d 386, 388  (1st Cir.  1988)
            _____________     _____



            (plea agreements are to  be interpreted according to contract



            law principles).   So  interpreted, defendant cannot  state a



            claim that his rights were violated.



                      There was,  however, a difficulty,  provided by the



            court itself.  At the hearing at which the court undertook to



            determine,  in lengthy  converse with  defendant,  whether he



            understood the consequences of entering the agreement and the



            plea,  see F.R.Crim.P.  11(c), the  court did  not quote  the
                   ___



            agreement  fully.     After  explaining   to  defendant   his



            obligation  under  the  agreement  to  make   full,  truthful



            disclosure,  and the  consequences  of failing  to do  so, it



            stated, "Now,  any truthful information that  you provide the


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government during the course of your  cooperation will not be



            used against you."   The original limitation, to  non-use "by



            the government," was omitted.  In all fairness, was defendant



            supposed  to  remember it?   The  whole  purpose of  the plea



            hearing  is to  assure full  understanding.   The objectively



            reasonable understanding in defendant's  ears when he signed,



            see  Hogan, 862  F.2d at  388,  was that  he was  assuming an
            ___  _____



            obligation  to speak in  exchange for, among  other things, a



            grant  of full use immunity for whatever he disclosed.  True,



            the court went on to quote the agreement's provision that the



            information "will  not be used in  determining the applicable



            guideline range,"  which we  observe would be  superfluous if



            the  prior  statement  is   interpreted  to  grant  full  use



            immunity.   The implication, and the  principle inclusio unis
                                                            ________ ____



            exclusio  alterius est  are  rules of  construction known  to
            ________  ________ ___



            lawyers, but a defendant surely cannot be expected to apply a



            lawyer's   analytical   tools   in   a   colloquy   conducted



            specifically  to  assure  his  lay  understanding.    We  are



            particularly  loathe to  do so  when the  effect would  be to



            contradict  apparent  absoluteness.   At  best,  the  court's



            second statement created an ambiguity that we must resolve in



            favor of defendant's reasonable understanding.



                      The case comes down to this.  A plea agreement is a



            contract   under  which   both   parties  give   and  receive



            consideration.   The government obtains a  conviction that it


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otherwise might not  have.   The defendant,  correspondingly,



            receives less, or a  chance at less, than he  otherwise might



            have.  In this case the government received something more --



            tangible disclosures concededly of substantial value in light



            of the return offered defendant (non-use of the information),



            which was promised  not merely as hope,  but as firm.   Under



            F.R.Crim.P.  11(e)(3) and (4) the  court may accept or reject



            the agreement.  Here the court expressly  defined in absolute



            terms  the  benefit  defendant  should  expect.    Under  the



            agreement the court could have denied the government's motion



            for  a downward departure, but it cannot be thought it should



            do so by relying  on the very disclosures that  defendant was



            bargained  to  make  on   an  immunization  promise.    While



            doubtless the court did  not recall this record inadvertency,



            surely  due process, not to mention  public perception of the



            courts, should forbid such a result.3



                      This  brings us to the  remand itself.   It will be



            open to the court, after vacating the present sentence, again



            to address the issue  of a downward departure.  In this case,



            however,  the  court  should  not  change  the  finding  that



            defendant   had  rendered   substantial  assistance   to  the



            government, and if  it is to  be rebutted it  must be on  new


____________________



            3.  To the extent that U.S.S.G.   1B1.8(b)(5) and application

            note   1  appear   to   the  contrary,   the   constitutional

            prerogatives in this case must prevail.



                                         -6-



findings, which  we suggest should be  stated, independent of



            defendant's disclosures.


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We  vacate  defendant's  sentence  and  remand  for



            resentencing.



                             -Concurring opinion follows-
                             -Concurring opinion follows-


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SELYA, Circuit Judge (concurring).  While I have no
                      SELYA, Circuit Judge (concurring).
                             _____________



            doubt  that  the defendant  in  this  case  has been  treated



            fairly, I  agree with my  colleagues that the  combination of



            the district  judge's unfortunate  slip of the  tongue during



            the change-of-plea  hearing and his frank  use of information



            elicited  from the  defendant during  debriefing to  impose a



            sentence  at  the  top  of  the  guideline  range  creates  a



            perception  of  unfairness  and  requires   vacation  of  the



            sentence.   I  write separately,  however, to  highlight four



            points.



                      First, this is not a case in which the court coaxed



            a  plea  through  a  misrepresentation.   Mr.  Conway  is  an



            intelligent,  well-educated  businessman who  was represented



            throughout by distinguished counsel.   Insofar as I can tell,



            he was not actually misled and the judge's lapsus linguae had
                                                       ______ _______



            no  actual   effect  on  the  course   of  the  proceedings.4



            Nevertheless, I cannot vote to uphold the sentence.  When the



            public  perception of  justice is  imperilled by  the court's



            actions in a criminal case, the usual rules of harmless error



            do not apply.


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            4.  This conclusion is underscored,  if not compelled, by the

            late  blossoming  of  any   argument  based  on  the  court's

            misstatement at the change-of-plea hearing.   The defendant's

            brief on appeal is devoid of developed argumentation  in this

            regard, and the judge's statement was first mentioned at oral

            argument in this court (and then, only in passing).



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Second, it is important to emphasize that this case



            is sui generis.  Under ordinary circumstances, the guidelines
               ___ _______



            permit  information  obtained  from a  cooperating  defendant



            during debriefing  to be used in  determining the defendant's



            sentence (as long  as the  plea agreement does  not impose  a



            further limitation on these uses).  See U.S.S.G.  1B1.8(b)(5)
                                                ___



            & n.1.



                      Third, the plea agreement in this case, interpreted



            under principles of contract law, see United States v. Hogan,
                                              ___ _____________    _____



            862  F.2d 386, 388 (1st  Cir. 1988), imposed  no such special



            limitation.    Were  it   not  for  the  judge's  inadvertent



            misstatement  during the  change-of-plea colloquy,  the court



            could have  used the  information obtained  during debriefing



            either  to  deny  the  downward  departure,  or  to  fix  the



            defendant's sentence within  the appropriate guideline range,



            or for both purposes.



                      Fourth,  under the plea  agreement, the guidelines,



            and binding precedent in  this circuit, see United States  v.
                                                    ___ _____________



            Mariano, 983 F.2d  1150, 1157 (1st  Cir. 1993), the  district
            _______



            court was obliged fully  to consider the elicited information



            in  determining whether  to  grant  the government's  section



            5K1.1  motion for  a  downward  departure.   On  remand,  the



            district  court   remains   obliged  to   consider  all   the



            information.  And, moreover, even if the court finds that the



            defendant substantially assisted the investigation, it is not


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obligated  to  grant  the  section 5K1.1  motion  and  depart



            downward,   see   Mariano,   983   F.2d   at   1156-57,   or,
                        ___   _______



            alternatively,  to impose  a sentence  at the  bottom of  the



            guideline range.



                      Despite the court's substantial discretion in these



            respects,  I agree  with my  colleagues that  resentencing is



            required.   When, as now, a sentencing court makes clear that



            a discretionary action   even a discretionary action that the



            court  has  no  legal obligation  to  explain  at  all5    is



            premised  on an  impermissible  consideration, the  court  of



            appeals must intervene.  See United States v. Drown, 942 F.2d
                                     ___ _____________    _____



            55, 60  (1st Cir. 1991).   To this  extent, the judge  pays a



            high price for candor   but justice demands the exaction.


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            5.  A good example, apropos here, is that, subject to certain

            exceptions  not  relevant  in  the circumstances  at  bar,  a

            sentencing court  has no legal  obligation to explain  why it

            chooses  a  particular  sentence within  a  narrowly  defined

            guideline  sentencing range.    See, e.g.,  United States  v.
                                            ___  ____   _____________

            Levinson,  56 F.3d 780, 780 (7th Cir. 1995); United States v.
            ________                                     _____________

            Garrido, 38 F.3d 981,  986 (8th Cir. 1994); United  States v.
            _______                                     ______________

            Lively,  20 F.3d 193, 198 (6th Cir.  1994).  By like token, a
            ______

            sentencing court  customarily need not explain  the basis for

            its  refusal to depart downward.  See, e.g., United States v.
                                              ___  ____  _____________

            Lombardi, 5 F.3d 568, 572 (1st Cir. 1993).
            ________



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