United States v. Dupont

• Court: Court of Appeals for the First Circuit
• Decided: January 31, 1994
• Docket: 93-1176
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 93-1176

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                    JULIAN DUPONT,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

                       [Hon. Shane Devine, U.S. District Judge]
                                           ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
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                                Boudin, Circuit Judge,
                                        _____________

                         and Pollak,* Senior District Judge.
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                                 ____________________

            Howard J.  Castleman with whom Janis  M. Berry, by Appointment  of
            ____________________           _______________
        the Court, and Ropes & Gray were on brief for appellant.
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            David A.  Vicinanzo, Assistant United  States Attorney,  with whom
            ___________________
        Peter E.  Papps, United States  Attorney, and Jean B.  Weld, Assistant
        _______________                               _____________
        United States Attorney, were on brief for the United States.

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                                   January 31, 1994
                                 ____________________

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        *Of the Eastern District of Pennsylvania, sitting by designation.

BOUDIN,  Circuit Judge.   Julian Dupont was  indicted in
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            November 1988, together  with many others, for  participating

            in a drug trafficking ring  headed by Jean Lemieux.  Pursuant

            to  a  plea agreement  Dupont  pleaded  guilty to  one  count

            charging  him with  conspiracy  to  possess  with  intent  to

            distribute.   In the agreement the government stipulated with

            Dupont  that Dupont  had conspired  to  distribute about  4.5

            kilograms   of  cocaine.    The  government  also  agreed  to

            recommend  a sentence of  five years' imprisonment.   Despite

            that recommendation, on  August 15, 1989, the  district court

            sentenced Dupont to seven years in prison.1

                 In  this case,  the most recent  of several  attempts by

            Dupont to alter his sentence  or limit forfeitures, Dupont in

            a section 2255  proceeding persuaded the district  court that

            he was entitled to  be resentenced.  The court  found that at

            the original sentencing Dupont and  his counsel had not  been

            provided  sufficient time to  review the  pre-sentence report

            and  that  findings had  not  been made  on  certain disputed

            issues, as  provided for  in the  then-applicable version  of

            Fed.  R.   Crim.  P.  32(c)(3).     The  court   scheduled  a

            resentencing  hearing and made  clear that either  side could

            present evidence.

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                 1The  Sentencing Guidelines did not apply to the offense
            and  the district  court was  limited only  by the  statutory
            maximum of 20 years.

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At the  resentencing hearing  on February  9, 1993,  the

            government offered two witnesses.   Most important, Lemieux--

            whose sentence had been reduced from almost 20 years to seven

            years in exchange  for his help to the  government in several

            trials--appeared.  Countering Dupont's claim that he was only

            a minor  player in  the ring,  Lemieux testified that  Dupont

            introduced  Lemieux to a  new source of  cocaine, that Dupont

            acted  as his  partner and  shared profits  for a  year while

            Lemieux was doing kilogram size deals, and that Dupont joined

            him on over 10 trips to collect cocaine from the new source.

                 Agent  Ryan, who had  testified at the  first sentencing

            hearing,  testified again.   He reaffirmed that  over $20,000

            had been seized  at Dupont's residence, and  he now described

            the DEA's seizure  of a 125 pound scale, two rifles and a .25

            calibre handgun, which  was found in Dupont's bedroom.  Ryan,

            who  had  not  been  present at  the  arrest,  was apparently

            relying  on  information  from  the  arresting  agents.    He

            conceded that only small  amounts of cocaine had  been seized

            at the arrest.

                 The  district  court  then resentenced  Dupont  to seven

            years' imprisonment.  The  court credited Lemieux's testimony

            and found that Dupont was "a substantial drug dealer" who had

            offered no assistance to the government.  The court described

            the items found in  the apartment as tools of the  trade.  It

            also referred to the role of Carlos Arboleda--a major Florida

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source, see United States v. Arboleda, 929 F.2d 858 (1st Cir.
                    ___ _____________    ________

            1991)--in  supplying  the Lemieux  conspiracy.    Lemieux had

            testified that Dupont knew that Arboleda was one of Lemieux's

            other sources of cocaine.

                 On  this appeal from the resentencing, Dupont begins his

            attack by  arguing that  this court  should follow the  Third

            Circuit and  hold  that the  government must  produce to  the

            defense prior statements of  the witnesses whom it offers  at

            sentencing proceedings.  See United States  v. Rosa, 891 F.2d
                                     ___ _____________     ____

            1074 (3d Cir.  1989).2  This rule,  urges Dupont, would  be a

            proper exercise of this court's  supervisory power in view of

            the enormous impact of sentencing determinations.  No request

            for  such  statements was  made  by  defense counsel  at  the

            resentencing, and  no such  statements were  produced by  the

            government.

                 We  think  that  there  is  little  reason  to  consider

            extending Jencks retroactively in  a case where, even if  the
                      ______

            Jencks  Act applied  by its  own  terms, no  appeal would  be

            permitted  because no  request for  the  materials was  made.

            Jencks Act, 18 U.S.C.   3500(b) (materials to be produced "on

            motion of the defendant); see United States v. Mack, 892 F.2d
                                      ___ _____________    ____

____________________

                 2The Jencks Act,  18 U.S.C.   3500,  codifying Jencks v.
                                                                ______
            United  States, 353 U.S. 657 (1957), imposes this requirement
            ______________
            with  respect to government  witnesses at trials.   Effective
            December 1,  1993, a new  amendment, Fed. R. Crim.  P. 32(e),
            codifies  Rosa  and  extends Jencks  to  sentencing hearings,
                      ____               ______
            provided that a  request is made by  defendant.  See  Fed. R.
                                                             ___
            Crim. P. 26.2.

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134,  137 (1st  Cir.  1989),  cert. denied,  111  S. Ct.  162
                                          ____________

            (1990).   Dupont could  easily have made  the request  in the

            district  court.    While  a  district  court  might  well be

            reluctant to  make new  law by  adopting the  Third Circuit's

            approach simpliciter, nothing prevented Dupont from trying to
                     ___________

            show  the district court why prior statements were critically

            important in this case.

                 We might overlook the  failure to make either a  request

            or a  detailed showing  if there were  any indication  that a

            miscarriage of  justice had  resulted.  On  the contrary,  in

            this instance  the discrepancies in  Ryan's testimony between

            the first  and second hearing  are minor and would  have been

            apparent  from reviewing a  transcript of the  first hearing.

            As  to Lemieux,  a  far more  damaging witness,  the district

            court deemed him credible despite the very large reduction in

            sentence he had received for  his past aid to the government.

            There is  no hint that anything in Lemieux's prior statements

            would have altered that judgment, and  pure speculation is no

            evidence that justice has miscarried.

                 Dupont's brief next recasts the Jencks Act argument as a
                                                 ______

            Brady  argument, contending  that  the  government failed  to
            _____

            disclose  exculpatory material.   See Brady v.  Maryland, 373
                                              ___ _____     ________

            U.S.  83 (1963).    The main  materials identified  are prior

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statements  of Lemieux  and  statements  or  notes  of  Agent

            Ryan.3  While  impeachment material may sometimes  qualify as

            exculpatory under Brady,  we have no  reason to believe  that
                              _____

            any  of the  prior  statements significantly  undermined  the

            testimony of  the government witnesses.   There is  even less

            basis for  finding "a reasonable probability" that disclosure

            would have altered the result.   United States v. Bagley, 473
                                             _____________    ______

            U.S. 667, 682 (1985) (plurality opinion).

                 Next,  Dupont contends that "due process requires that a

            defendant not be sentenced upon materially untrue assumptions

            or  misinformation" and argues that such a violation occurred

            in  this case.    Although  the  Supreme Court  used  related

            language in Townsend  and it is echoed in  our decisions,4 it
                        ________

            would   be  hard  to  find  a   general  statement  so  often

            misunderstood.   Only  a  naive  observer  could  doubt  that

            defendants are from time to  time convicted and sentenced  on
                                                        ___

____________________

                 3Dupont also says  that the government did  not disclose
            that it had  returned $75,000 seized from Lemieux  so that he
            could pay attorney's fees.  This fact, stated in the Arboleda
                                                                 ________
            decision,  929 F.2d  at 865  n.10,  pales in  importance when
            compared with the  drastic reduction in sentence  received by
            Lemieux,  a  benefit  fully  disclosed  in  the  resentencing
            hearing.

                 4Townsend v.  Burke, 334  U.S. 736,  740-41 (1948)  (due
                  ________     _____
            process violated,  "while disadvantaged by  lack of  counsel,
            this  prisoner  was  sentenced on  the  basis  of assumptions
            concerning his criminal record which were materially untrue")
            (Jackson, J.); United States v.  Curran, 926 F.2d 59, 61 (1st
                           _____________     ______
            Cir.  1991)  ("defendant  has  a  due  process  right  to  be
            sentenced upon information  which is not false  or materially
            incorrect").

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the    basis   of    "materially   untrue    assumptions   or

            misinformation":  witnesses  may lie,  or make  mistakes, and

            trial juries or sentencing judges  may believe them.  It does

            happen.

                 Yet no one supposes that a defendant can  relitigate any

            issue of fact at any time he  or she likes merely by invoking

            the due  process clause and  offering to show that  a mistake

            was  made.    "[E]ven  an  erroneous  judgment,  based  on  a

            scrupulous and diligent search for truth,  may be due process

            of law."   Townsend,  334 U.S. at  741.  Townsend  involved a
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            defendant, unrepresented  by  counsel  at  sentencing,  whose

            sentence  was seemingly  enhanced based on  three nonexistent

            criminal convictions.  Justice Jackson explained (id. at 741)
                                                              ___

            that it was the false  foundation of the sentence, "which the

            prisoner had no  opportunity to correct by the services which

            counsel would provide,  that renders the proceedings  lacking

            in due process."  See also id. at 739  ("absence of counsel,"
                              ________ ___

            where prejudicial, is "violation of due process").5

                 Today, a whole  skein of complex rules  determines which

            issues may  be relitigated,  in what  circumstances, at  what

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                 5Evidently,  the  record  before  the  Supreme Court  in
            Townsend  did not  make clear  whose  fault it  was that  the
            ________
            sentencing   judge   credited   the  defendant   with   three
            nonexistent convictions.   Justice Jackson contented  himself
            with saying:  "We believe that on the record before us, it is
            evident   that   this   uncounseled  defendant   was   either
            overreached by the prosecutor's  submission of misinformation
            to the court or was  prejudiced by the court's own misreading
            of the record."  Id. at 740.
                             ___

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stage,  and under  what standard  of  review.   See generally
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            W. LaFave & J.  Israel, Criminal Procedure (1984);  "Project:
                                    __________________

            22nd Annual Review of Criminal Procedure," 81 Georgetown L.J.
                                                          _______________

            853 (1993).   Thus,  a prosecutor's  knowing use  of perjured

            testimony  may pose  one issue,  2  LaFave at    19.5;  newly
                                                ______

            discovered evidence a  different issue, 3  id. at    27.3(d);
                                                       ___

            and simple  disagreement with  a jury's  reasonable inference

            yet another,  3 id.  at    26.5.   In criminal  procedure, as
                            ___

            elsewhere, generalities are no substitute for analysis.

                 Here,  Dupont argues that the court relied on materially

            untrue assumptions  and misinformation when  it concluded  at

            sentencing that Dupont was a substantial drug dealer and that

            the items seized in his apartment were tools of the trade and

            that Arboleda  had some relationship  to the conspiracy.   An

            examination of the  argument shows it to be  a garden variety

            disagreement with the  district court's  finding that  Dupont

            played a significant  role in the conspiracy.   At best, this

            is  a finding  that would  be  subject, even  under the  more

            rigorous  Sentencing  Guidelines, to  review  based upon  the

            "clearly erroneous" standard.  18 U.S.C.   3742(e).  We think

            that the finding is amply supported by Lemieux's testimony.

                 Dupont's quarrels  with details are  wholly unimportant.

            It makes no difference whether, as Dupont contends,  the over

            $20,000 found were gambling proceeds, the scale calibrated in

            ounces rather  grams, or the  rifles used for hunting.   Once

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the district  court credited Lemieux's testimony,  Dupont was

            going to be  labeled as a substantial  drug dealer regardless

            of  what tools  he possessed or  of Arboleda's  precise role.

            The  district  judge,  whose credibility  determinations  are

            entitled  to great weight, noted in his post-sentence written

            findings that  he  heard  Lemieux testify  not  only  at  the

            hearing but in a number of jury trials.

                 As  for the  length of  the sentence, which  Dupont also

            attacks,  this  is  largely  unreviewable  for  pre-guideline

            sentences, and Dupont does not  come within a mile of raising

            a  serious constitutional issue  regarding length.   A seven-

            year sentence  is no  tap on the  wrist, but  in one  respect

            Dupont may  be fortunate: a  guideline sentence for 3.5  to 5

            kilograms of cocaine,  even for a first time  offender, is 97

            to 121 months, and under  the guidelines, there is no parole.

            See U.S.S.G.   2D1.1(c)(7) and sentencing table.
            ___

                 In conclusion,  we note that  on this appeal  Dupont has

            had the  benefit of  a sophisticated brief  and an  able oral

            argument by  defense counsel.   His problem  lies not  in his

            representation,  but in  the fact  that  in the  resentencing

            proceeding  he received  a  legally  valid  sentence.    That

            sentence is affirmed.
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