USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1492
UNITED STATES OF AMERICA,
Appellee,
v.
JAMES TAVANO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Kimberly Homan, with whom Sheketoff & Homan was on brief,
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for appellant.
Brien T. O'Connor, Assistant United States Attorney, with
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whom A. John Pappalardo, United States Attorney, was on brief,
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for appellee.
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December 29, 1993
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SELYA, Circuit Judge. This appeal requires us to
SELYA, Circuit Judge.
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clarify a sentencing court's obligations in resolving evidentiary
disputes over drug quantity. Because we understand the court
below to have fashioned a per se rule giving controlling effect
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to trial testimony, come what may, and because the court, in
fidelity to its self-hewn rule, did not meaningfully consider
conflicting evidence proffered by the defense, we vacate
appellant's sentence and remand for resentencing.
I. BACKGROUND
I. BACKGROUND
We bifurcate our account of what transpired below,
first elucidating the sequence of relevant events, and then
placing an interpretive gloss on those events.
A. The Sequence of Events.
A. The Sequence of Events.
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A jury found defendant-appellant James Tavano guilty of
conspiring to possess cocaine with intent to distribute in
violation of 21 U.S.C. 846 (1988). Dissatisfied with the
outcome, appellant engaged new counsel. The probation officer
proceeded to compile the presentence investigation report (PSI
Report).
On February 11, 1993, the PSI Report emerged. It
adopted the prosecution's version of the crime, concluding that
appellant's relevant conduct encompassed between five and fifteen
kilograms of cocaine. Appellant's new lawyer objected to this
conclusion and, on March 15, 1993, sent a letter to the probation
officer spelling out discrepant representations in the grand jury
2
testimony concerning the size and frequency of certain
transactions.1 The attorney argued that the proffered evidence
cast the trial testimony into disrepute and, moreover, giving the
proffered evidence its due, appellant could not be held
responsible for more than three and one-half kilograms of
cocaine.2 The prosecutor promptly fired off a detailed rebuttal
letter under date of April 9, 1993. The probation officer, in
turn, attached a brief addendum to the PSI Report, stating:
After review of the materials submitted by
both the defense and the government, the
probation office feels that the calculations
originally submitted in the [PSI] Report are
correct and accurately reflect the amount of
cocaine for which the defendant can be held
accountable. The report is unchanged.
The district court convened a disposition hearing one
week later. Here follows, at length, the crucial exchange
between defense counsel and the judge:
COUNSEL: I'd like to say that I think
perhaps the thing to do in this case is not
to sentence, but perhaps take some time and
have one of your clerks maybe go through [my
March 15] submission.
JUDGE: No. No. I don't want to do that.
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1By and large, this testimony originated from the same
sources, and referred to the same transactions, as the trial
testimony on which the probation officer and the prosecution
relied.
2The prize at stake in the battle over drug quantity is no
mere bagatelle. If five or more kilograms of cocaine are
properly attributable to Tavano, he is subject to a mandatory
minimum prison term of ten years, see 21 U.S.C.
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841(b)(1)(A)(ii), as opposed to a mandatory minimum sentence of
five years if his alternative calculation is credited, see 21
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U.S.C. 841(b)(1)(B)(ii). Tavano's base offense level and
guideline sentencing range are similarly affected.
3
It is not the kind of thing I would do.
I have just read, I think carefully, the
government's statement, which is helpful in
refreshing my recollection as to what
happened at the trial. You weren't here at
the trial, although you did read the
transcript, and I think what [the prosecutor]
says is accurate.
COUNSEL: Your Honor, it may be accurate
but
JUDGE: I don't think that I can go beyond
that. In other words, I think what your
point is, is that if I consider the grand
jury testimony, if I consider prior
inconsistent statements, I can come out a
different way, but I don't think that is what
I do.
It seems people come to court and they
testify. This is the dough issue, so to
speak, as you well know, and it is the
evidence that is presented at trial that
controls; and, even in the most conservative
efforts to try to make sure there is no
double charging against your client, he comes
out well above the amount that is necessary.
COUNSEL: I don't think that is true.
JUDGE: I am not saying I am right. I hope
I am right.
COUNSEL: . . . I say that you have a right
to look at both of these testimonies and make
the decision as to what the weight was.
* * *
JUDGE: . . . You didn't try the case, and
I didn't try the case. I presided, and you
were somewhere else. But I do think that
what should control is the evidence that is
presented at trial. That is where everything
gets shaken down.
I think that [the prosecutor's]
statement of what took place at trial is
reasonably presented in this April 9, 1993
submission . . .; and for purposes of the
4
record, I will adopt his statement as my
findings. If I have made a mistake, then
that gives you a very clear shot on appeal.
That is what I am trying to do.
Following this exchange, the court selected a guideline
sentencing range on the basis of its finding that appellant
handled between five and fifteen kilograms of cocaine, and
sentenced appellant to a prison term of 121 months (the nadir of
the chosen range), capped by five years of supervised release.
On the order of judgment form, the court indicated its adoption
of the findings suggested in the PSI Report. This appeal ensued.
B. Interpreting the Sequence of Events.
B. Interpreting the Sequence of Events.
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Before appellate review can proceed, it is necessary to
clarify exactly what the district judge did and exactly what he
did not do. We are guided in this endeavor by the record a
record that flavors the judge's words and, concomitantly, offers
insights into his thinking.
Appellant's principal complaint on appeal is that the
district court enunciated an ironclad rule holding that, where
witnesses' trial testimony and their other statements on the
issue of drug quantity conflict, the former necessarily
controls.3 We think this is an accurate assessment of the
district court's position. For one thing, the judge himself
repeatedly stated as much. He said, for example: "I don't think
that I can go beyond [the evidence at trial]. . . . I don't
think that [considering inconsistent statements made prior to
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3Appellant also attacks the adequacy of the district court's
findings. That attack fails. See infra Part II(B).
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5
trial] is what I do. . . . [I]t is the evidence that is
presented at trial that controls. . . . [W]hat should control
is the evidence that is presented at trial." These are
categorical pronouncements reflecting careful thought, not
statements in any way qualified or specially tailored to the
facts of the case.4 While some individual phrases, taken in
isolation, may be either ambiguous or subject to benign
explanation, the cumulative import of these statements, read in
context, is unmistakable.
For another thing, the judge's actions speak as loudly
as his words and they speak to the same end. Insofar as the
record reflects, the judge never read or, at least, never
analyzed, the defense's submission, presumably because he
regarded it as irrelevant. In contrast, the judge read the
government's submission on the bench and credited it because it
jibed with his recollection of the trial testimony. Of critical
importance, the judge did not act as if he were making a case-
specific ruling: he neither compared the arithmetical soundness
of the competing drug quantity calculations nor made
particularized credibility determinations.
Third, the district court's formal findings are of a
piece with our reading of the sentencing transcript. The court
eschewed any detailed, independent findings, but, rather, made
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4This is not a situation involving a simple slip of the
tongue or an "awkward locution." Lenn v. Portland Sch. Comm.,
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998 F.2d 1083, 1088 (1st Cir. 1993) (collecting cases). Rather,
this case features a studied course of action, thoughtfully
undertaken and repeatedly articulated.
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what appear to be implicit findings. On the order of judgment
form, the court adopted the recommended findings contained in the
PSI Report. These findings included, of course, the proposed
findings presented in the government's April 9 letter a missive
premised solely on trial testimony, summarily approved by the
probation officer, and eventually appended to the order of
judgment form.
Fourth, the lack of comparative analysis and detailed
findings gains added significance when it is viewed in concert
with the judge's avowed uncertainty about the propriety of his
actions. If the court were making a fact-specific comparison
based on demeanor evidence a humdrum exercise rather than
pronouncing a neoteric rule of law, there would have been little
point in "trying" to set the stage to give Tavano "a very clear
shot on appeal."
We are obliged to review a trial court's actions as
they are made manifest in the record, cf. Advance Fin. Corp. v.
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Isla Rica Sales, Inc., 747 F.2d 21, 26 (1st Cir. 1984)
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(acknowledging that "the district court speaks to [the court of
appeals] primarily through its decrees"); and, while word
processing is incapable of fully reproducing the thickness of
reality, we are confident that, here, the district court
formulated a per se rule declaring trial testimony determinative
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of drug quantity, to the exclusion of all other evidence bearing
7
upon the same set of transactions.5 We proceed on that
understanding.
II. DISCUSSION
II. DISCUSSION
Having satisfied ourselves as to the import of the
record, we summarize the legal principles that allow us to test
the soundness of the lower court's rationale and, accordingly,
govern the disposition of this appeal. Next, we set some allied
concerns to rest. At journey's end, we apply the discerned law
in light of what transpired below.
A. Applicable Legal Principles.
A. Applicable Legal Principles.
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A number of other tribunals have had occasion to
emphasize the obligation that devolves upon a sentencing court
presented with conflicting drug quantity evidence to review that
evidence and exercise independent judgment. See, e.g., United
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States v. Goines, 988 F.2d 750, 775 (7th Cir.) (admonishing
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courts to "resist the urge to accept summarily the quantity
alleged by the government"), cert. denied, 114 S. Ct. 241 (1993);
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United States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993)
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("When the amount of drugs for which a defendant is to be held
responsible is disputed, the district court must make an
independent resolution of the factual issue at sentencing.");
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5Even if there were room for an objectively reasonable
division of opinion on what the judge intended and we see no
such room here it is apparent that the ends of justice are best
served by giving appellant the benefit of any doubt. Cf., e.g.,
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Bifulco v. United States, 447 U.S. 381, 387 (1980) (discussing
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applicability of rule of lenity to ambiguous criminal statutes).
8
United States v. Collado, 975 F.2d 985, 998 (3d Cir. 1992)
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(explaining that a "sentencing court must carefully review the
government's [drug quantity] submissions to ensure that its
estimates are proven by a preponderance of the evidence"). In a
case that bears haunting similarities to the case at bar, the
Sixth Circuit vacated a defendant's sentence because it appeared
possible that the district judge placed the jury's drug quantity
findings on a pedestal and treated them as controlling at
sentencing, without independent analysis of other relevant
evidence. See United States v. Prior, 941 F.2d 427, 430-31 (6th
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Cir.), cert. denied, 112 S. Ct. 613 (1991). Such a per se rule,
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Chief Judge Merritt wrote, would defile the principle that "the
sentencing judge must exercise independent judgment in
sentencing." Id. at 431.
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We, too, recognize that the district court has a duty
to consider all relevant drug quantity evidence at sentencing,
even if that evidence is from the same sources as, and conflicts
with, evidence adduced at trial. In the final analysis, this
duty derives from the Due Process Clause, which guarantees every
defendant a "right to be sentenced upon information which is not
false or materially incorrect." United States v. Berzon, 941
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F.2d 8, 18 (1st Cir. 1991); accord United States v. Curran, 926
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F.2d 59, 61 (1st Cir. 1991). To give content to this right, a
court must take pains to base sentencing judgments upon reliable
and accurate information. See Berzon, 941 F.2d at 18; United
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States v. Prescott, 920 F.2d 139, 143 (2d Cir. 1990). And to
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9
assure itself that a piece of proof is sufficiently reliable, a
court must consider all the available evidence, including
conflicting evidence.
The Criminal Rules are designed to nourish the due
process right to be sentenced based on substantially accurate
information. See Curran, 926 F.2d at 61; United States v.
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Gerante, 891 F.2d 364, 367 (1st Cir. 1989). Thus, a district
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court confronted with an alleged error of fact in a presentence
report must make either "(i) a finding as to the allegation, or
(ii) a determination that no such finding is necessary because
the matter controverted will not be taken into account in
sentencing." Fed. R. Crim. P. 32(c)(3)(D); see also United
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States v. Wells Metal Finishing, Inc., 922 F.2d 54, 58 (1st Cir.
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1991) (collecting cases). The federal sentencing guidelines
slant in the same direction and, to that extent, also nourish the
due process right:
When any factor important to the sentencing
determination is reasonably in dispute, the
parties shall be given an adequate
opportunity to present information to the
court regarding that factor. In resolving
any reasonable dispute concerning a factor
important to the sentencing determination,
the court may consider relevant information
without regard to its admissibility under the
rules of evidence applicable at trial,
provided that the information has sufficient
indicia of reliability to support its
probable accuracy.
U.S.S.G. 6A1.3 (Nov. 1992). In our estimation, this provision
not only requires sentencing courts to afford defendants a fair
opportunity to present information relevant to sentencing
10
(including information at variance with trial testimony), but
also requires courts to mull any information adduced.
The government asserts that section 6A1.3 cuts a
narrower swath. It notes that, in terms, the policy statement
mandates only presentation of conflicting evidence; the language
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mentioning evaluation of such evidence ("may consider") is
permissive and, therefore, the government says, judicial
consideration of presented material is in the court's discretion.
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We reject this now-you-see-it, now-you-don't prestidigitation,
for neither the government's hocus-pocus nor its crabbed reading
of section 6A1.3 make any real sense. Drawing an artificial
distinction between presentation and consideration much like
drawing a distinction between the opportunity to be heard and the
opportunity to be listened to reduces the guideline to
gibberish, stripping it of its essential meaning. We do not
think the Sentencing Commission, in drafting section 6A1.3, could
possibly have meant to give defendants such cold gruel,
pretending to confer a benefit, yet, simultaneously, withholding
the benefit's intrinsic value. Indeed, with this reality in
mind, we have already interpreted section 6A1.3 to "require the
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sentencing court to make an independent determination regarding
the reliability of all proffered evidence." United States v.
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Zuleta-Alvarez, 922 F.2d 33, 36 (1st Cir. 1990) (emphasis
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supplied), cert. denied, 111 S. Ct. 2039 (1991).6
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6Although we did not at the time justify this requirement
with specific reference to the text of section 6A1.3, we believe
that it may fairly be inferred, both as a gloss on the word
11
The duty to consider evidence conflicting with trial
testimony takes on special urgency in the drug quantity context.
Though sentencing judges may look to trial testimony when they
adjudicate factual disputes ancillary to sentencing,7 see, e.g.,
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United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990), there
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are at least two good reasons to be skeptical of total reliance
on trial testimony in this context. First, under the guidelines,
drug quantity is a factor of extraordinary importance to the
sentencing calculus. See United States v. Morillo, ___ F.3d ___,
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___ (1st Cir. 1993) [No. 93-1388, slip op. at 12] (explaining
that "drug quantity profoundly affects sentence length," with the
result that "relatively small quantitative differences often have
a significant leveraging effect" in respect to sentence length);
United States v. Bradley, 917 F.2d 601, 604 (1st Cir. 1990)
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(describing drug quantity as "a key datum" in determining
sentences of drug traffickers). It is, therefore, imperative for
a sentencing court to shine a very bright light on possible
answers to the drug quantity inquiry. Second, drug quantity
testimony, even if subject to reasonable dispute, is not apt to
be challenged vigorously at trial, for defendants are
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"adequate" (in the phrase "adequate opportunity to present") and
as the only policy consistent with the guideline's spirit. The
opportunity to present information could hardly be regarded as
"adequate" if the court retained the power to file the presented
information away, sight unseen, and continue blithely on its way.
7We refer here to the mine-run of cases; there are, of
course, special situations in which reliance on particular trial
testimony may be inappropriate. See, e.g., Berzon, 941 F.2d at
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20.
12
understandably wary of conceding culpability before the jury and
often prefer to pitch their case on bedrock issues of guilt or
innocence. See United States v. Valencia-Lucena, 988 F.2d 228,
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232 (1st Cir. 1993); Zuleta-Alvarez, 922 F.2d at 36. Thus, drug
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quantity, by its nature, is likely to be a "factor important to
the sentencing determination," and, even after trial, is likely
to remain "reasonably in dispute." U.S.S.G. 6A1.3. These are
precisely the circumstances under which a timely request to
consider conflicting evidence must be honored.
To sum up, we hold, consistent with the dictates of due
process, that both Fed. R. Crim. P. 32(c)(3)(D) and U.S.S.G.
6A1.3 require a sentencing court independently to consider
proffered information that is relevant to matters of consequence
in the sentencing determination. In cases where drug quantity
qualifies under this rubric, a reviewing court is obliged to
consider all available evidence having probative value, including
but not limited to witnesses' prior inconsistent statements and
other proof contradicting witnesses' trial testimony, and to pass
independent judgment thereon.
B. Allied Legal Principles.
B. Allied Legal Principles.
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In the interest of avoiding any future
misunderstandings, we wish to clarify three allied points.
First, a trial judge's duty to consider conflicting evidence
seasonably presented during the sentencing phase in no way
implies a duty of blind acceptance. When all is said and done, a
judge, after examining all the relevant evidence, may ordinarily
13
pick and choose. And in the process, the judge may decide,
because of its persuasive force in a particular case, to fall
back upon, and ultimately to credit, trial testimony.
Next, we summarily dismiss appellant's claim that
either the duty of independent consideration or, alternatively,
Rule 32, implies a duty of free-standing articulation. Explicit
findings, while often desirable, are not indispensable in
connection with drug quantity issues.8 As a general rule, a
trial court lawfully may make implicit findings with regard to
sentencing matters, incorporating by reference suitably detailed
suggestions limned in the PSI Report or advanced by a party. See
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United States v. Savoie, 985 F.2d 612, 620 (1st Cir. 1993); Wells
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Metal, 922 F.2d at 58. That practice is permissible in drug
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cases as in other cases.9 See, e.g., United States v. Barnett,
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989 F.2d 546, 551-52 & n.5 (1st Cir.), cert. denied, 114 S. Ct.
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148 (1993); United States v. Cruz, 981 F.2d 613, 618-19 (1st Cir.
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1992); Gerante, 891 F.2d at 367.
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Finally, we do not mean to suggest that a court must
always resolve every controversy that touches upon the amount of
drugs involved in an offense, scheme, or course of conduct. It
is unnecessary to address a dispute over drug quantity if, and to
the extent that, adjudicating it will not alter the applicable
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8We see nothing in our opinion in United States v. Hanono-
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Surujun, 914 F.2d 15, 19 (1st Cir. 1990), much bruited by
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appellant, that compels a different conclusion.
9On this basis, we reject appellant's argument that the
court below transgressed Rule 32 by the use of implicit findings
in respect to drug quantity.
14
offense level, influence the guideline sentencing range, or bring
a different mandatory minimum sentence into play.10 See, e.g.,
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Bradley, 917 F.2d at 604.
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C. The Bottom Line.
C. The Bottom Line.
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The principles we have discussed are dispositive of the
instant appeal. Although a sentencing court's factbound
determination of drug quantity is usually reviewable only for
clear error, see id. at 605, judgments concerning the applicable
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rules of law are subject to plenary review. See Morillo, ___
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F.3d at ___ [slip op. at 14]; see also United States v. St. Cyr,
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977 F.2d 698, 701 (1st Cir. 1992) (holding that, under the
guidelines, claimed mistakes of law are reviewed de novo). In
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this case, we conclude that the lower court lapsed into error
when it formulated a per se rule and refused independently to
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consider evidence at variance with trial testimony. Since we
cannot say with fair assurance that the mistake did not affect
the outcome, resentencing is required.
III. CONCLUSION
III. CONCLUSION
We need go no further. For the reasons stated, we hold
that the district court erred in failing independently to
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10To illustrate, if the present controversy over drug
quantity boiled down to the difference between, say, six and nine
kilograms of cocaine, the court would not be obliged to resolve
it. Either way, the offense level would be the same, see
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U.S.S.G. 2D1.1(c)(6) (Drug Quantity Table) (setting offense
level for offenses involving 5 or more, but less than 15,
kilograms of cocaine), the sentencing range would be the same,
cf. id., and the mandatory minimum sentence would be the same,
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see 21 U.S.C. 841(b)(1)(A)(ii) (fixing obligatory minimum
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sentence for offenses involving 5 or more kilograms of cocaine).
15
scrutinize proffered evidence conflicting with the trial
testimony anent drug quantity.11 Hence, we vacate appellant's
sentence and remand for a new sentencing hearing and for further
proceedings consistent with this opinion.
It is so ordered.
It is so ordered.
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11We venture no opinion as to whether, after due
consideration, the disputed trial testimony should (or should
not) be credited in this instance. We similarly refrain from
commenting upon what drug quantity is most appropriately
attributable to appellant. Those matters are for the nisi prius
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court.
16