UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 94-1008
UNITED STATES OF AMERICA,
Appellee,
v.
FRANCISCO RODRIGUEZ CLAUDIO, a/k/a PITO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
Before
Selya, Boudin and Stahl,
Circuit Judges.
James Kousouros for appellant.
Richard A. Friedman, Department of Justice, with whom Guillermo
Gil, United States Attorney, and Rosa E. Rodriguez-Velez, Assistant
United States Attorney, were on brief for the United States.
January 5, 1995
BOUDIN, Circuit Judge. On May 6, 1992, Francisco
Rodriguez Claudio was indicted, in the last superseding
indictment in this case, for conspiring to import heroin, 21
U.S.C. 952(a), 963, and for conspiring to possess it with
intent to distribute. 21 U.S.C. 841(a), 846. The
indictment, which embraced 23 co-defendants, charged
Rodriguez and others with participating in a wide-ranging
drug conspiracy to secure heroin from Southeast Asia and
distribute it in Puerto Rico and elsewhere in the United
States. Various defendants, including Rodriguez, were
charged with specific acts of possession, transportation and
money laundering.
At the time Rodriguez was indicted in the present case,
he was serving a sentence of 105 months as a result of an
earlier guilty plea entered in October 1990. In this earlier
case, Rodriguez had pled guilty to one count of conspiring to
possess heroin with intent to distribute and one count of
aiding and abetting an attempt to possess heroin with intent
to distribute. 21 U.S.C. 841(a), 846. That case centered
around a specific reverse-sting drug transaction in Puerto
Rico involving Rodriguez.
Following his indictment in May 1992, Rodriguez moved to
dismiss on the ground that the new prosecution was barred
under the double jeopardy clause, U.S. Const., amend. V. The
government responded with an opposition including a number of
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exhibits, three of which were filed ex parte with a request
that they be sealed. Defense counsel was advised of the
nature of these sealed documents but not their contents. The
sealed documents were two DEA-6 forms recording witness
interviews and one transcript containing grand jury testimony
of a co-conspirator.
The magistrate judge, to whom the double jeopardy motion
was referred, rejected Rodriguez' attempt to secure the
sealed materials. Ultimately the magistrate judge filed a
report recommending that the double jeopardy claim be
disallowed. On review, the district court rejected the
double jeopardy defense and upheld the sealing of the three
documents. Neither the magistrate judge nor the district
court held an evidentiary hearing.
Rodriguez then entered into a conditional plea agreement
reserving his right to appeal the rejection of the double
jeopardy defense. Fed. R. Crim. P. 11(a)(2). On March 22,
1993, Rodriguez pled guilty to the drug importation
conspiracy charge already mentioned and to two substantive
counts: one for money laundering, 18 U.S.C. 1956(a)(2)(A),
and the other for a specific act of importation. 21 U.S.C.
952(a). The remaining charges against Rodriguez, including
the distribution conspiracy count under 21 U.S.C. 841(a),
846, were dismissed.
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The district court sentenced Rodriguez to concurrent
sentences of 112 months on all three counts, these sentences
to run concurrently with the previously imposed (and partly
served) 105-month sentence in the earlier case that had ended
with the guilty plea entered in May 1990. The district
court's object was to produce a total punishment of 142
months' imprisonment for the two cases pursuant to guideline
provisions discussed below. The district court declined to
grant a downward departure or to defer sentencing in order to
hear medical experts testify about the condition of
Rodriguez' son.
On this appeal, Rodriguez assails the denial of his
double jeopardy claim and the sealing of the three documents.
He then argues that the sealed items also constituted Brady
material and were independently required to be disclosed.
Finally, Rodriguez says that the district court should have
allowed the medical experts to testify in support of the
downward departure request and that in any event the sentence
was improperly calculated. We address the issues in that
order.
1. The double jeopardy issue is more complicated than
difficult. On appeal, Rodriguez has narrowed the double
jeopardy claim to an attack on the import conspiracy count in
the May 1992 indictment. In substance he claims that the
distribution conspiracy charged in the earlier 1990 case was
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merely an aspect of the larger import conspiracy charged in
the present case. Having been prosecuted and convicted of
that "single" offense--Rodriguez argues--he cannot now be
prosecuted a second time for the same offense. See North
Carolina v. Pearce, 395 U.S. 711 (1969).
The government has, of course, brought the two
conspiracy charges under different statutes. The October
1990 plea in the prior case concerned a conspiracy to possess
with intent to distribute and the March 1993 plea in this
case involved a conspiracy to import. The former charge (but
not the latter) requires an intent to distribute as an
element of the offense; and the latter (but not the former)
requires an intent to import. Thus, the test for separate
offenses adopted in Blockburger v. United States, 284 U.S.
299, 304 (1932), is satisfied. Put differently, an agreement
to import may be punished separately from an agreement to
possess with intent to distribute.
In its brief, the government appears to assume that the
presence and applicability of two different conspiracy
statutes, each requiring an element that the other does not,
means that there were two different conspiratorial
agreements. That is not necessarily so. There could be only
a single agreement which had multiple criminal objectives
(e.g., a conspiracy to import and distribute heroin). See
Braverman v. United States, 317 U.S. 49 (1942). As best we
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can tell, that is just what Rodriguez is arguing in this
case.
But even if Rodriguez is right in claiming that there
was only a single agreement (and the indications are
otherwise), it does not matter. A single act may constitute
two different offenses for double jeopardy purposes so long
as two different statutes were violated and each requires an
element that the other does not. This is true of conspiracy,
Albernaz v. United States, 450 U.S. 333 (1981) (single
conspiracy embracing drug importation and distribution), as
well as other crimes. E.g., United States v. Franchi-
Forlando, 838 F.2d 585, 589 (1st Cir. 1988) (importation of
drugs violating both prior approval and disclosure statutes).
This case involves not only multiple convictions but
successive prosecutions, yet the Blockburger test is
generally applied in both situations. See United States v.
Dixon, 113 S. Ct. 2849, 2859-64 (1993). Perhaps in some
circumstances there might be collateral estoppel or even due
process limitations on a second prosecution for the same act
(e.g., where an acquittal occurred in the first case). No
such situation is presented here. And under the principles
established in Blockburger even a single conspiracy can be
two different "offenses" for double jeopardy purposes.
Albernaz, 450 U.S. at 339.
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Thus, we do not need to consider whether the overlap
between the two conspiracies here charged--in time, place,
conspirators, objects and the like--is such that there is one
unlawful agreement or several. See United States v. Gomez-
Pabon, 911 F.2d 947 (1st Cir. 1989), cert. denied, 493 U.S.
1030 (1990). In fact, the government has a colorable case
that the distribution conspiracy charged in the 1990
indictment was a narrow one and that, apart from the common
presence of Rodriguez and one confederate, that drug deal had
little to do with the large ring responsible for the
Southeast Asia imports. But the evidence is mixed, no
evidentiary hearing was ever held, and it is unnecessary to
resolve the matter.
For the same reason, the sealing of two witness
interviews and the grand jury transcript cannot be
prejudicial in relation to the double jeopardy defense. The
only relevance of the material (so far as double jeopardy is
concerned) was its bearing on the question whether there was
one conspiracy or several, and the answer does not matter.
In fairness to the parties, we note that this case was
largely litigated in the district court before United States
v. Dixon, overruled the "same conduct" test of Grady v.
Corbin, 495 U.S. 508 (1990), and under Grady the double
jeopardy and any related disclosure claims might look
different.
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2. Looking to future prosecutions, we think it useful
to comment on one aspect of the sealing issue and the
government's defense of the procedure it followed. It is
true that from time to time, in special circumstances, judges
in criminal cases do receive submissions from prosecutors
whose contents are not made known to the defense; and in
extraordinarily rare cases even the existence of the
submission may be undisclosed. United States v. Innamorati,
996 F.2d 456, 487 (1st Cir.), cert. denied, 114 S. Ct. 409,
459 (1993), 114 S. Ct. 1072, 1073 (1994). But our traditions
make both of these courses presumptively doubtful, and the
burden of justification is upon the government.
In this case it is difficult to tell from the materials
available to us what justification was provided by the
government at the outset; we have only a boilerplate motion
to seal which was granted. Thereafter, when the defense
sought access to the material, the government's response to
the magistrate judge and to the district court was that the
witness statements were Jencks materials which need not be
disclosed before the witness testifies, see 18 U.S.C. 3500;
Fed. R. Crim. P. 26.2, and that grand jury materials were
protected by Fed. R. Crim. P. 6. The government renews its
contention in this court.
The contention is so fundamentally mistaken that we
cannot pass by it in silence for fear that the government may
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think to repeat its approach in a case where it turns out to
matter. Subject to various qualifications, the Jencks Act
and Rule 6 are perfectly proper objections when the defense
is fishing on discovery to obtain information from the
government. But this is an instance in which the government
was seeking affirmatively to use the sealed information in
court as evidence, to obtain a ruling from the magistrate
judge and the district court on the merits of the double
jeopardy issue.
Rodriguez' position on appeal--that the government can
never affirmatively use information in court and withhold it
from the defense--may overstate the matter; but not by much.
To be sure, sealed submissions sometimes have to occur in
situations where the government seeks a ruling that certain
information it is withholding should not be disclosed
because, for example, it is claimed to be irrelevant or
privileged or outside the scope of Brady v. Maryland, 373
U.S. 83 (1963). Even then, the courts customarily insist on
a particularized showing of substantial cause (e.g., state
secret, danger to an ongoing investigation). See Innamorati,
996 F.2d at 487 (citing cases).
The notion that the government can have a defendant's
defense dismissed based on government evidence that the
defendant is not allowed to see goes even further than the
withholding of irrelevant or privileged information. And the
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government's asserted reasons here do not even begin to
approach a justification for such an action. Jencks material
is disclosed routinely after a witness testifies; and grand
jury testimony can be made available under Rule 6 based on
all kinds of circumstances. The idea that general safeguards
against wide-ranging discovery like the Jencks Act and Rule 6
would be sufficient to justify a conviction on secret
evidence is patently absurd.
The government cites us to the alleged "flat preclusion"
of the Jencks Act, which states that no report by a
government witness or prospective witness in a criminal case
"shall be the subject of subpena, discovery or inspection"
until the witness has testified on direct at trial. 18
U.S.C. 3500. But even the barest consideration of this
statute makes it apparent that it is a shield against
premature discovery efforts. See Jencks v. United States,
353 U.S. 657 (1957). It is not a license for the government
to use such statements as evidence in court and then deny the
defense access to them.
Of course, a particular piece of evidence contained in a
Jencks statement or in grand jury testimony might itself be
protected on independent grounds that are far more
compelling. But we need not try to imagine in this case what
grounds might be so compelling as to allow the government to
use evidence in court but withhold it from the defense.
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Nothing in the government's brief so much as hints that it
has any justifications beyond its boilerplate Jencks Act and
Rule 6 assertions.
3. We turn now to Rodriguez' claim of a Brady
violation. Rodriguez now has access to one of the documents
previously sealed--a DEA debriefing of co-defendant Martinez
on April 6, 1992--which contains Martinez' assertion that
Rodriguez provided $150,000 for the purchase of cocaine in
Hong Kong. Although the date of the money transfer is not
stated, surrounding dates indicate that it occurred sometime
during March 1990 and at least some days before April 4,
1990, when Martinez traveled to Hong Kong to purchase drugs.
One of the overt acts charged against Rodriguez in aid of the
import conspiracy count was that on or about March 1990, he
provided $150,000 to Martinez in Puerto Rico to finance drug
purchases for import.
In connection with the plea agreement and its Rule 11
proffer, the government twice asserted that the $150,000
transfer by Rodriguez occurred on April 7, 1990. On appeal,
Rodriguez asserts that the debriefing report, as well as
other government evidence, confirm that Martinez left for
Hong Kong on April 4. Since such evidence contradicted the
government's plea-related assertions that the money transfer
occurred in Puerto Rico on April 7, it had to be turned over
under the Brady doctrine.
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The government assumes arguendo that Brady might apply
where a withholding of exculpatory information actually
causes a guilty plea, see Miller v. Angliker, 848 F.2d 1312
(2d Cir.) cert. denied, 488 U.S. 890 (1988), but says that it
has no record that the defense ever requested Brady material
in the district court. Rodriguez says that the failure to
make such a request is not conclusive. See Ouimette v.
Moran, 942 F.2d 1, 9 n. 6 (1st Cir. 1991). We see no reason
to explore these interesting subjects since, as the
government also points out, the discrepancy here has no
significance.
The government specified in the indictment that
Rodriguez transferred the $150,000 in or about March 1990;
that this date was correct is strongly suggested by the
Martinez' debriefing and is not contradicted by any evidence
we have seen. The government cannot explain how the April 7
date crept into the proceedings, but it was apparently an
error and would have been so explained in the district court,
had Rodriguez complained about the discrepancy between the
indictment and the proffer. So explained, the discrepancy
would not have given Rodriguez any reason to alter his plea.
Tersely, Rodriguez' brief asserts that the April 6,
1992, report debriefing Martinez was Brady material for a
quite different reason. In the report, Martinez is reported
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(by the debriefing agent) as describing a proposed per-unit
purchase price for the drugs in an amount that Rodriguez now
says is implausible. The government, responding quite
briefly, says that the accuracy of the information was
"completely immaterial" to the counts of conviction and to
Rodriguez' decision to plead guilty.
The misstatement as to the purchase price, if it were a
misstatement, might conceivably have furnished some
ammunition for cross-examination if Martinez had testified.
But there is no reason to think that the government
deliberately withheld information: it was apparently never
asked to search for Brady material and in any case the
significance of the drug price figures certainly does not
leap off the page. More important, we have been given no
reason to think that even some impairment of Martinez'
credibility would have undermined what was apparently a
substantial case against Rodriguez.
Rodriguez' brief makes no effort to explain why we
should think that one piece of potential cross-examination
evidence should be deemed likely to undermine the
government's case and Rodriguez' inclination to plead. At
the very least, Rodriguez' belated Brady objection requires
some reason to believe that the plea would not have been
entered if the price information had been disclosed. Miller,
848 F.2d at 1321-22. We need not be precise about the
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required showing since no such showing is even attempted on
appeal.
4. Rodriguez' remaining claims relate to his sentence.
The first one, which can be disposed of quite simply, is that
the district court abused its discretion in refusing to
postpone the scheduled sentencing, in order to allow the
submission of live medical testimony. Prior to the
sentencing Rodriguez had requested a downward departure
because of family circumstances, specifically, the need for
him to care for a 12 year old son suffering from a
neurological condition and a learning disorder. Rodriguez
had already submitted some written information about the
son's condition, but sought a postponement to offer live
medical testimony claimed to be more specific.
The district court rejected the requested postponement,
explaining at the sentencing that the court had already
carefully considered the requested downward departure and
found it not to be warranted. But the court then offered to
accept at the hearing a proffer of what the absent expert's
medical testimony would be. A proffer was made, but it did
not alter the court's refusal to depart downward. On appeal,
Rodriguez does not claim that the district court
misunderstood the scope of its authority to depart--only that
the refusal to hear live testimony was an abuse of
discretion.
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The government tells us that we have no authority to
review the refusal to postpone because a refusal to depart is
itself largely unreviewable, and that in any case it would
have been impermissible to grant a downward departure. A
shorter, less debatable, answer is that there is no automatic
right to present live testimony at sentencing, United States
v. Tardiff, 969 F.2d 1283, 1286 (1st Cir. 1992), and that
testing the value of proposed live testimony by a proffer--
especially where a postponement would be involved--accords
with both common practice and good sense. Nothing in
Rodriguez' brief persuades us that a proffer was an
inadequate wayto convey thesubstance of themedical testimony.
5. The remaining sentencing issue is more complicated.
Because Rodriguez was already serving a federal sentence for
drug offenses, he was sentenced in this case under U.S.S.G.
5G1.3(c). Under this provision, the court calculates the
total punishment that would have been imposed if Rodriguez
had been convicted of both the prior offenses and the present
ones in one case, and then imposes a new sentence that runs
consecutively to the old to the extent needed to impose that
total punishment on Rodriguez. Id. comment. (n.3). In this
case, the district court fixed the total punishment for the
prior and present crimes as 142 months, a figure that is not
here disputed.
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Since Rodriguez was already serving a 105 month
sentence, the district court then computed the new sentence
with the object of achieving a total period of 142 months'
imprisonment. Stating that Rodriguez had been incarcerated
for 30 months under the old sentence, the court fixed his new
sentence at 112 months' imprisonment and imposed it
concurrently with the prior 105 month sentence; obviously,
the original 30 months and the new 112 months would equal the
target of 142 months. On appeal, Rodriguez says for the
first time that, at the time of sentencing, he had already
served 37 rather than 30 months.
The problem appears to arise because--unknown to the
district court--Rodriguez may have been credited on the
earlier sentence for seven months served while under arrest
and before conviction. 18 U.S.C. 3585(b). On appeal, the
government says that the district court's 30-month premise
may have been mistaken but that the government is not certain
of the facts. The government also argues that the error has
been waived by Rodriguez' failure to raise the point in the
district court. It adds that Rodriguez can arguably obtain a
correction, if his version of the facts is borne out, under
Fed. R. Crim. P. 36.
Rule 36 permits the district court to correct at any
time "[c]lerical mistakes in judgments . . . arising from
oversight or omission." The government agrees that the
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judgment and transcript show that the district court did
intend to fix the present sentence by subtracting time
already served by Rodriguez on his prior sentence from the
target figure of 142 months. The question whether at the
time of sentencing in this case Rodriguez had served 30 or 37
months of his original sentence can probably be answered by
resort to Bureau of Prison records. Under these
circumstances, we see no reason why Rule 36 should not be
available as a remedy. United States v. Crecelius, 751 F.
Supp. 1035, 1037 (D.R.I. 1990), aff'd, 946 F.2d 880 (1st Cir.
1991) (table).
It is also the more appropriate avenue for relief.
Technically, Rodriguez did waive his right to appeal on this
issue by failing to raise it below, United States v. Elwell,
984 F.2d 1289, 1298 (1st Cir.), cert. denied, 113 S. Ct. 2429
(1993). Rodriguez does not suggest that plain error
occurred; probably the 30-month figure was plausibly based on
the date of Rodriguez' original conviction. Even now
Rodriguez has not proved that there was in fact error. Under
these circumstances, we agree with the government that the
proper remedy is to affirm without prejudice to Rodriguez'
filing of a Rule 36 motion supported by some documentation of
the 37 month figure.
Affirmed.
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