United States v. Santiago Gonzalez

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 94-1246



                                    UNITED STATES,



                                      Appellee,



                                          v.



                               JUAN SANTIAGO-GONZALEZ,



                                Defendant - Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]
                                                ___________________



                                 ____________________



                                        Before



                                 Cyr, Circuit Judge,
                                      _____________



                            Bownes, Senior Circuit Judge,
                                    ____________________



                           and McAuliffe,* District Judge.
                                           ______________



                                _____________________



               Luis F. Abreu-El as on brief for appellant.
               ___________________

               Guillermo  Gil,  United  States  Attorney, Jos   A.  Quiles-
               ______________                             _________________

          Espinosa,  Senior  Litigation  Counsel  and  Miguel  A.  Pereira,
          ________                                     ___________________

          Assistant United States Attorney, on brief for appellee.


____________________



                                  September 25, 1995

                                 ____________________


____________________



          *  Of the District of New Hampshire, sitting by designation.



McAULIFFE,  District  Judge.    Juan  Santiago-Gonz lez
                    McAULIFFE,  District  Judge.
                                _______________



          ("defendant")  appeals  from  the  district  court's  refusal  to



          enforce a term of his written plea agreement  ("Agreement") which



          ostensibly required the  government to file a motion for downward



          departure  under     5K1.1  of  the   United  States   Sentencing



          Guidelines.   He also questions the  district court's calculation



          of his  base offense level under the Guidelines.  For the reasons



          set forth below, we affirm.



                                    I.  BACKGROUND
                                    I.  BACKGROUND
                                        __________



                    On  July  2,  1992,  defendant and  three  others  were



          indicted on four counts of  defrauding the Corporaci n Insular de



          Seguros  ("CIS")  of  $1,401,000.00.     CIS,  a  privately  held



          insurance company  chartered in the Commonwealth  of Puerto Rico,



          was controlled by the defendant  and two of three  co-defendants.



          Defendant was employed as  CIS's vice president for claims.   Two



          of his co-defendants served as CIS's president and vice president



          for  finance  and operations,  respectively,  and  the third,  an



          attorney, was engaged  in private practice.   The three corporate



          officers were effectively able to manage the company's assets and



          authorize payment of claims made against its policies.



                    From  October of 1991 until May  of 1992, defendant and



          his  colleagues  jointly  ran  a false  insurance  claim  scheme.



          Defendant,  as vice  president  for  claims, reopened  previously



          closed  claim files  so fictitious  claims could be  made against



          those accounts.  The  vice president for finance  established and



          assigned  cash reserves to those reopened accounts.  The attorney


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then  submitted  fictitious  claims  on  behalf  of  non-existent



          clients,  which were paid by CIS and charged against the reserves



          assigned to the reopened accounts.  The false claims were paid by



          checks  drawn on  CIS's  bank account  and  made payable  to  the



          attorney, as counsel for the fictitious claimants.   The attorney



          cashed the checks,  kept part  of the proceeds  for himself,  and



          distributed the  remainder among the three  CIS officers, usually



          in equal shares.



                    Defendant's collaborators  pled guilty soon  after they



          were charged, but defendant  entered a not guilty plea  and stood



          trial.   Two  days  into his  trial,  defendant reconsidered  and



          accepted a plea  bargain.   In exchange for  defendant's plea  of



          guilty, the government  agreed to exercise its discretion to file



          a  motion   for  downward  departure  under   U.S.S.G.     5K1.1,



          contingent  on  defendant's  anticipated   "completely  truthful,



          forthright,    and    honest    assistance   and    information."



          Additionally, the plea agreement  required defendant to submit to



          a  polygraph  examination  "should  the  United  States  deem  it



          appropriate."  After executing the Agreement, defendant dutifully



          entered  pleas of guilty to  mail fraud and  aiding and abetting.



          18 U.S.C.   1341; 18 U.S.C.   2.



                    In   late  April   1993,  the   government  deemed   it



          appropriate for defendant to submit to a polygraph examination in



          order to resolve some  doubt about whether he was  being entirely



          truthful and cooperative in the ongoing investigation.  Defendant



          submitted to the polygraph  and, in the opinion of  the examiner,


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the test results indicated deception.  Accordingly, at sentencing



          the government  refused to  move for  a downward  departure under



          U.S.S.G.   5K1.1.



                    In  addition,  the  district  court,  relying   on  the



          testimony of  his  accomplices, found  that defendant  was not  a



          minor  participant  in the  scheme, as  he  claimed.   Instead of



          adjusting his offense level downward as  defendant had hoped, the



          trial  judge upwardly adjusted his base offense level, relying on



          U.S.S.G.   2F1.1(2)  (more than minimal planning)  and U.S.S.G.  



          3B1.3 (abuse of position of trust).



                                   II.  DISCUSSION
                                   II.  DISCUSSION
                                        __________



                    On  appeal, defendant  raises  two issues.   First,  he



          challenges  the   district  court's   refusal   to  enforce   the



          government's  obligation  to  move for  downward  departure under



            5K1.1.   Next, he questions the district court's calculation of



          his base offense level under the Guidelines.



                    A.   Denial   of  Specific  Performance   of  the  Plea
                    A.   Denial   of  Specific  Performance   of  the  Plea

                         Agreement
                         Agreement



                    Defendant says  that by  meeting with  the prosecution,



          providing truthful  information, and submitting to  the requested



          polygraph examination, he substantially performed his obligations



          under  the Agreement, thereby  earning the departure  motion.  He



          argues  that the government's obligation to file a   5K1.1 motion



          was  contingent only  upon his providing  "truthful information,"



          which, in substance, he did.



                    The  Agreement provides that "if in  the opinion of the



          [polygraph] examiner your answers  indicate deception you will be



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in  breach of  this  agreement."    Defendant concedes  that  the



          polygraph examiner was of the  opinion that his answers indicated



          deception, and he does not seriously dispute that  in fact he did



          not answer all  questions truthfully.  But, he says, successfully



          passing a polygraph examination was not a  condition precedent to



          the government's  obligation to  move for downward  departure; it



          was  simply an  additional  undertaking intended  to provide  the



          government with some means of gauging the extent of his "truthful



          cooperation" (which was the condition precedent).  His failure to
                              ___



          answer every question truthfully during the polygraph examination



          may have frustrated the government's desire  for "corroboration,"



          and the absence of corroboration may have devalued  his "truthful



          cooperation"  by  some degree,  he  argues,  but he  nevertheless



          substantially  "truthfully cooperated."   He  reasons that  he at



          least earned the departure motion, and says that it is the extent
                                     ______



          of  the  departure  that should  reflect  his  less than  perfect



          performance.



                    We have held that plea  agreements "must be attended by



          safeguards  to insure the defendant what is reasonably due in the



          circumstances."  United States v.  Baldacchino, 762 F.2d 170, 179
                           _____________     ___________



          (1st  Cir. 1985)  (citing Santobello  v. New  York, 404  U.S. 257
                                    __________     _________



          (1971)).  We have also recognized that principles of contract law



          often provide useful references  when construing plea agreements.



          See United States v.  Anderson, 921 F.2d 335, 337 (1st Cir. 1990)
          ___ _____________     ________



          ("It is black letter  law that plea agreements, 'though  part and



          parcel  of criminal  jurisprudence,  are subject  to contract-law


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standards  in  certain  respects.'") (quoting  United  States  v.
                                                         ______________



          Hogan, 862 F.2d 386, 388 (1st Cir. 1988)); see also United States
          _____                                      ________ _____________



          v.  Papaleo,  853 F.2d  16, 19  (1st  Cir. 1988)  ("A contractual
              _______



          approach to plea agreements  ensures not only that constitutional



          rights are respected, but also that the integrity of the criminal



          process is upheld."); United States v. Gonz lez-S nchez, 825 F.2d
                                _____________    ________________



          572, 578  (1st Cir. 1987) ("Contractual  principles apply insofar



          as  they are relevant to determining what the government owes the



          defendant.").



                    Applying contract-law principles in this case, we first



          turn  to the specific language  of the Agreement.   See Anderson,
                                                              ___ ________



          921 F.2d at 338.  That language is unambiguous:



                      You  will submit, if you are requested to

                      do  so,  when  requested  to  do  so,  to

                      polygraphic  examination   (lie  detector

                      test)  should the  United States  deem it

                      appropriate.  If you fail to submit or if

                      in  the  opinion  of  the  examiner  your
                                                           your

                      answers indicate deception you will be in
                      answers indicate deception you will be in

                      breach of  this agreement.   (emphasis in
                      breach of  this agreement.

                      original)



                    This  obligation was  thoroughly  discussed during  the



          plea  colloquy between  defendant and the  trial judge.   Indeed,



          defendant's  own  comments  leave  little  doubt  that  he  fully



          understood  that the  government's obligation  to file  a   5K1.1



          motion  was   conditioned  on  his  submitting   to  a  polygraph



          examination  if  asked,  and  passing that  examination  "in  the



          opinion of the examiner":



                      THE COURT:  .  . . And if in  the opinion

                      of  the  examiner  your answers  indicate

                      deception, you  will be in  breach of the


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agreement.  Have you understood what that

                      means?



                      THE DEFENDANT:  Yes your Honor.



                      THE COURT:  That  means that if you don't

                      pass the  lie  detector test  it will  be

                      understood  that  you  are not  providing

                      truthful   and   honest  assistance   and

                      information that is expected of you.



                      THE DEFENDANT:  I understand, your Honor.



                    The  only plausible  interpretation  of the  Agreement,



          given  its  unambiguous  language  and  defendant's  acknowledged



          understanding, is that it means exactly what it says.  See United
                                                                 ___ ______



          States  v.  Atwood  963 F.2d  476,  479  (1st  Cir. 1992)  (Court
          ______      ______



          interpreted plea agreement to  mean precisely what it  said where



          defendant  signed and  agreed to  it in  the presence  of judge).



          Defendant does not  claim that the examiner's  opinion was rooted



          in bad  faith or  was  based on  anything but  his own  objective



          interpretation  of the  examination results.   Rather,  he argues



          that because a polygraph  examination is an inherently unreliable



          means of determining  truth, and such  results are not  generally



          admissible in courts of law, that part of the Agreement requiring



          him to submit to and pass the test should be deemed void.



                    But defendant was not  "required" to accept those terms



          of the Agreement.  In this case both defendant and the government



          agreed  to  the   polygraph's  use  as  the   standard  by  which



          defendant's  performance  of  his  obligation  to  be  completely



          truthful  would be  measured  by the  government.   Both  parties



          presumably had sufficient confidence  in its reliability for that



          purpose.   Having  agreed to  the test,  whatever  its scientific



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weaknesses might be,1 defendant  cannot now be heard to  say that



          his own  promise was illusory or that he was somehow misled.  Nor



          can  he  credibly  argue  that   the  government's  discretionary



          decision not to file  the departure motion was made  in bad faith



          or without rational basis.   Defendant's integrity as a  possible



          witness in  other matters was certainly undermined by his failure



          to  answer  questions truthfully.   See,  e.g., United  States v.
                                              ___   ____  ______________



          Catalucci,  36 F.3d 151 (1st Cir. 1994).  Besides, defendant does
          _________



          not  seriously  contest  the fact  that  he  did  not answer  all



          questions truthfully.



                    Because the  defendant was in breach  of his obligation



          to  be  "completely truthful,"  the  government  was entitled  to



          exercise  its discretion not to  file a downward departure motion



          under Guideline   5K1.1.



                    B.   District Court's Calculation of  Defendant's Total
                    B.   District Court's Calculation of  Defendant's Total

                         Offense Level
                         Offense Level



                    The  district court set defendant's total offense level



          under the Guidelines  at 15,  in part by  upwardly adjusting  his



          base  offense level  pursuant to  both U.S.S.G.    2F1.1(2) (more



          than  minimal planning) and U.S.S.G.   3B1.3 (abuse of a position



          of  trust).   At  the same  time,  the district  court  refused a



          downward  adjustment  under  U.S.S.G    3B1.2  (minor or  minimal


____________________



          1  We  agree with the conclusion of the Court  of Appeals for the

          Third Circuit in United States v. Swinehart, 614 F.2d 853 n.2 (3d
                           _____________    _________

          Cir.),  cert.  denied,  449  U.S.  827  (1980):    "Although  the
                  _____________

          infallibility of polygraphs is arguable, we decline to  hold that

          the Government cannot rely  on the tests where the  parties agree

          to such reliance in a plea bargain."



                                         -8-



participant in  offense).  Defendant argues  that the calculation



          was clearly erroneous.  Again, we disagree.



                    "Once the court of  appeals has defined the guideline's



          meaning and scope, it reviews the sentencing court's fact finding



          only for clear error."   United States v. St. Cyr, 977  F.2d 698,
                                   _____________    _______



          701  (1st Cir. 1992) (citing  United States v.  Tardiff, 969 F.2d
                                        _____________     _______



          1283, 1289 (1st Cir.  1992)); United States v. Connell,  960 F.2d
                                        _____________    _______



          191,  197  (1st Cir.  1992); see  also  United States  v. Rosado-
                                       _________  _____________     _______



          Sierra,  938 F.2d  1-2 (1st Cir.  1991) ("[D]efendant  . .  . can
          ______



          prevail on appeal only by demonstrating that the district court's



          determination  as  to  his  role   in  the  offense  was  clearly



          erroneous.") (per curiam); United States v. Garc a, 954  F.2d 12,
                                     _____________    ______



          18  (1st  Cir.  1992) ("Absent  a  mistake  of law,  we  review a



          sentencing  court's  role-in-the-offense  determination only  for



          clear  error.") (citing United States  v. Dietz, 950  F.2d 50, 52
                                  _____________     _____



          (1st Cir. 1991));  United States  v. Akitoye, 923  F.2d 221,  227
                             _____________     _______



          (1st  Cir. 1991)).  Additionally,  "where there is  more than one



          plausible  view  of  the  circumstances,  the sentencing  court's



          choice   among   supportable  alternatives   cannot   be  clearly



          erroneous."   United States v. Ruiz, 905  F.2d 499, 508 (1st Cir.
                        _____________    ____



          1990); see also Rosado-Sierra, 938 F.2d at 2.
                 ________ _____________



                    The  district court's  determination  in  this case  is



          supported  by the record,  and a two-level  upward adjustment for



          more than minimal planning under   2F1.1(b)(2)(A) was not clearly



          erroneous.   The  distinction  between "minimal"  and "more  than



          minimal  planning" as those terms  are used in  the Guidelines is


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illustrated by the example given in the accompanying comment:  "a



          single taking accomplished by a false book entry would constitute



          only minimal planning .  . . [while] several instances  of taking



          money, each  accompanied by false entries  [would constitute more



          than minimal planning]."    1B1.1(f), comment.   Here, the record



          reveals a number of instances of taking money by false entries as



          part of an overall scheme to defraud.  More than minimal planning



          was  obviously required  to  carry out  this sophisticated  false



          claims scheme.   See United States  v. Brandon, 17 F.3d  409, 459
                           ___ _____________     _______



          (1st Cir. 1994) ("[W]e are not  inclined to reverse a finding  of



          more  than  minimal  planning  unless the  evidence  compels  the



          conclusion that the defendant's  actions were purely opportune or



          'spur of the  moment.'") (citing United  States v. Gregorio,  956
                                           ______________    ________



          F.2d  341, 343 (1st  Cir. 1989)); cf. also  United States v. Fox,
                                            __  ____  _____________    ___



          889 F.2d 357, 361  (1st Cir. 1989) ("[W]e cannot  conceive of how



          even obtaining one  fraudulent loan would  not require more  than



          minimal planning.").  The trial judge properly concluded from the



          undisputed facts that defendant's participation in at least seven



          separate  "false entries"  for the purpose  of defrauding  CIS of



          approximately  $1.4 million, required more than minimal planning,



          and we will not disturb that finding on appeal.



                    Defendant also asserts that the district court erred by



          increasing his offense level by two based on his alleged abuse of



          a  position  of  trust,  pursuant  to  U.S.S.G.    3B1.3.    That



          guideline calls for an upward adjustment where:



                      [T]he  defendant  abused  a  position  of

                      public   or  private  trust,  or  used  a



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special   skill,   in   a   manner   that

                      significantly facilitated  the commission

                      or concealment of the offense.



          U.S.S.G.   3B1.3.



                    When  reviewing  a district  court's  upward adjustment



          under   3B1.3, we first determine the legal meaning of terms such



          as  "position  of  private  trust,"  then  we  ask  "whether  the



          defendant actually used the position to facilitate or conceal the



          offense  . . . and if so, whether the position contributed to the



          misconduct  in a significant way."  United States v. Tardiff, 969
                                              _____________    _______



          F.2d  1283,   1289  (1st  Cir.  1992).     The  district  court's



          determination on each  point is of course  afforded due deference



          and is reviewed only for clear error.  Id.
                                                 __



                    Defendant  unquestionably  held a  position  of private



          trust.   As  we  have stated  before,  "'the primary  trait  that



          distinguishes a person in a position of trust from one who is not



          is  the  extent to  which the  position  provides the  freedom to



          commit a difficult-to-detect wrong.'"   Id. (citing United States
                                                  __          _____________



          v.  Hill, 915  F.2d 502,  505 (9th  Cir.  1990)).   Defendant, an
              ____



          officer of  the corporation, occupied a high  level position that



          not only  enabled him  to exercise broad  discretionary authority



          over the payment of  claims made against CIS's policies,  but, at



          the  same  time, allowed  him  to  "commit  difficult  to  detect



          wrongs," id., such as the fraudulent scheme charged in this case.
                   ___



                    The record establishes that defendant actually used his



          position to facilitate or conceal the crime, and so, the position



          contributed to  the misconduct.   Defendant conceded,  after all,


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that as  vice president for claims he  reopened previously closed



          cases and approved payment  of known false claims filed  in those



          cases.  Furthermore, it is self-evident that defendant's position



          within  the company enabled him  to facilitate both the execution



          and attempted concealment of that  scheme.  The district  court's



          finding  that defendant  abused  his position  of private  trust,



          warranting  an  upward  adjustment   under     3B1.3,  was  fully



          supported by the record.



                    The district court's decision  not to downwardly adjust



          under   3B1.2 (minor  or minimal participant  in the offense)  is



          also  fully justified by the  record.  U.S.S.G.    3B1.2 provides



          for a  downward adjustment where defendant's  role "in committing



          the offense . .  . makes him substantially less culpable than the



          average  participant."   The scheme  involved here  required each



          participant  to perform  a  significant and  necessary role;  the



          contribution of one participant was no less significant than that



          of  another in effecting  the scheme.   Accordingly, the district



          court  correctly determined that  defendant was not substantially



          less  culpable  than his  associates and  was  not entitled  to a



          downward adjustment.



                                   III.  CONCLUSION
                                   III.  CONCLUSION
                                         __________



                    For the  reasons stated  above, we affirm  the district



          court in all respects.



                    AFFIRMED.
                    ________


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