April 22, 1993 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 92-1459
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN L. TRACY,
Defendant, Appellant.
No. 92-1461
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN L. TRACY,
Defendant, Appellant.
No. 92-1554
UNITED STATES OF AMERICA,
Appellant,
v.
JOHN L. TRACY,
Defendant, Appellee.
ERRATA SHEET
The opinion of this Court issued on March 29, 1993, is amended as follows:
On page 15, line 1, continued to line 3, place a period after "counsel". Delete "and to follow the federal rules of civil procedure. See Fed. R. Civ. P. 11 (motions must be
signed).".
March 29, 1993 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 92-1459
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN L. TRACY,
Defendant, Appellant.
No. 92-1461
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN L. TRACY,
Defendant, Appellant.
No. 92-1554
UNITED STATES OF AMERICA,
Appellant,
v.
JOHN L. TRACY,
Defendant, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Cyr, Circuit Judge,
Campbell, Senior Circuit Judge,
and Boudin, Circuit Judge.
J. Michael McGuinness, by Appointment of the Court, with whom
McGuinness & Parlagreco and John L. Tracy pro se were on brief for
defendant. F. Mark Terison, Assistant United States Attorney, with whom
Richard S. Cohen, United States Attorney, was on brief for the United
States.
March 29, 1993
CAMPBELL, Senior Circuit Judge.
Defendant/appellant, John L. Tracy, was convicted in the
United States District Court for the District of Maine of
three counts of distribution and attempted distribution of
lysergic acid diethylamide ("LSD") in violation of 21 U.S.C.
841(a)(1) and 846. Tracy also separately pled guilty to
one count of failure to appear as ordered by the court, 18
U.S.C. 3146(a)(4). Tracy was sentenced to 97 months on the
distribution counts and a 24-month consecutive sentence on
the failure to appear count. In a scattershot approach,
Tracy raises a plethora of arguments challenging his
conviction and the resulting sentence. Pursuant to 18 U.S.C.
3742(b), the government appeals from the district court's
refusal to enhance Tracy's sentence for obstruction of
justice under U.S.S.G. 3C1.1. We affirm Tracy's
conviction, but vacate and remand for the district court to
reconsider whether an enhancement of his sentence is
warranted under 3C1.1.
I.
Tracy was initially indicted in the District of
Maine, in an indictment that was unsealed on October 4, 1990,
for distribution of LSD in July 1989 and August 1990. On
January 15, 1991, the district court empaneled a jury.
However, the trial was continued on January 28, 1991, prior
to the swearing of the jury, when Tracy's attorney became
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aware of a conflict involving a potential defense witness.
One of the government's witness statements included the name
of a present client of Tracy's attorney. Because of the
potential conflict between the two clients, the court granted
defense counsel's motion to withdraw. The court also granted
Tracy a continuance of two weeks to decide whether to hire
new private counsel or to accept a court-appointed lawyer.
The court reminded Tracy that his speedy trial rights were
waived during the period of continuance. On February 6,
1991, Tracy requested court-appointed counsel.
A superseding indictment, which changed the date of
one of the LSD sales, was filed on February 26, 1991.
Tracy's case was placed on the trial calendar for March 25.
However, on March 12, Tracy moved for a continuance because
he had not yet met with his new attorney. The court granted
the continuance and later rescheduled the trial to begin on
May 20, 1991.
A second superseding indictment, which added a new
count charging Tracy with attempted sale of LSD on August 22,
1990, was returned in five counts on April 24, 1991. Another
jury was empaneled on May 20, but it was not sworn. On the
day the trial was to begin, Tracy's attorney asked for
another continuance because Tracy had broken his leg and
wanted a new attorney. After determining that the lawyer-
client relationship had disintegrated, the court granted the
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attorney's motion to withdraw and the motion for a
continuance. The court again explained to Tracy that his
motion for a continuance stopped the speedy trial clock.
Tracy's trial was rescheduled for August 14, 1991.
Tracy, however, failed to report by telephone to his pretrial
services officer on August 12, and failed to appear for trial
on August 14. When Tracy was arrested in Florida on August
28, he was carrying false identification and pretended to be
someone else. Authorities returned Tracy to the District of
Maine, and the district court rescheduled his trial. On
September 17, the grand jury issued an additional single
count indictment against Tracy charging him with failure to
appear for trial.
Trial began in the LSD case on October 15, 1991.1
At the outset, the court instructed the jury to consider the
five alleged offenses separately. The government's case was
based primarily on the testimony of undercover agents and
informants, as well as several tape recorded conversations
with Tracy. The testimony and recordings revealed that on
August 18, 1990, a cooperating individual named Russell
Wright purchased 20 doses of LSD from Tracy at his cabin for
$80. On August 20, Wright returned to Tracy's cabin and
purchased 50 doses of LSD from Tracy for $150. The LSD
1. A judge different from those who had previously handled Tracy's case took over on the day that the trial began.
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purchased on both August 18 and 20 was on yellow blotter
paper with black airplanes.
On August 22, Wright attempted a third purchase of
LSD from Tracy at his cabin. Several agents from Maine's
Bureau of Intergovernmental Drug Enforcement ("BIDE")
testified that the purpose of this attempt was to flush out
the source of Tracy's LSD by requesting a high enough number
of doses that Tracy would not have them on hand. Wright
therefore requested 200 doses. When Tracy replied that he
had only 100, a BIDE agent instructed Wright not to complete
the purchase. Wright, however, testified that he did get a
look at the LSD and noticed that it was on the same yellow
blotter paper with black airplanes.
Another cooperating informant, Curtis Elwell,
testified about Tracy's alleged offenses in 1989. Elwell
testified that Tracy supplied him with LSD, which Elwell in
turn sold to a confidential informant on two occasions in
July 1989. Elwell admitted that he was arrested for these
sales and that his sentence was reduced from 60 months to 42
months for his cooperation with the government. The court
did not allow Tracy to impeach Elwell with a fourteen-year-
old drug conviction.
The government closed its case with evidence
concerning Tracy's flight to Florida. This was offered to
show consciousness of guilt. Over Tracy's objection, Eric
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Thompson, a United States Deputy Marshal from Florida,
testified to Tracy's attempt to conceal his identity at the
time of his arrest in Florida. At the conclusion of
Thompson's testimony, the government rested. Tracy did not
then move for acquittal.
Tracy took the stand in his own defense. He
testified to his drug use, to the availability of drugs
during his youth, and to the availability of LSD among
Grateful Dead followers. Contrary to a tape recording of his
conversation with Wright in which Tracy purportedly said that
he had to "make something" for his LSD dealing, Tracy
testified that he "was willing to just get [his] money back."
Tracy further testified that he and his family were afraid of
Wright because he seemed aggressive. According to Tracy and
his step-daughter, who also testified, the family decided to
sell Wright artificial LSD if he returned, in an apparent
belief that Wright would then leave them alone. Tracy
testified that on August 22, 1990, the LSD that he attempted
to sell to Wright was fake and was on blue blotter paper.
Tracy made no motion for acquittal after resting his case.
After the close of the evidence, the court again
instructed the jury to consider each alleged offense
separately. Thereafter, the jury found Tracy guilty of the
three August 1990 LSD offenses, but acquitted him on the two
July 1989 charges.
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Following the above convictions, but before
sentencing, Tracy, on November 7, 1991, entered a plea of
guilty to the separate charge of failure to appear.
II.
A. Pretrial and Trial Issues
1. Joinder of Counts
Tracy contends that the district court abused its
discretion when it refused to order separate trials for the
1989 and 1990 LSD distribution charges. Rule 14 of the
Federal Rules of Criminal Procedure, which governs motions to
sever, provides in relevant part the following: "If it
appears that a defendant . . . is prejudiced by a joinder of
offenses . . . the court may order an election or separate
trials of counts, . . . or provide whatever other relief
justice requires." A district court's denial of a motion for
relief from prejudicial joinder brought pursuant to Fed. R.
Crim. P. 14 is reviewed only for abuse of discretion. E.g.,
United States v. Chambers, 964 F.2d 1250, 1251 (1st Cir.
1992). Such a denial will not be reversed unless the
challenger makes "a strong showing of prejudice." United
States v. Gray, 958 F.2d 9, 14 (1st Cir. 1992) (quoting
United States v. Font-Ramirez, 944 F.2d 42, 45 (1st Cir.
1991), cert. denied, 112 S. Ct. 954 (1992)).
Tracy contends that he was prejudiced in two ways.
First, Tracy maintains that he was put in the untenable
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position of wishing to testify on the 1989 offenses while
wanting to remain silent on the 1990 offenses. See United
States v. Bronco, 597 F.2d 1300, 1302-03 (9th Cir. 1979).
However, as the magistrate noted in recommending denial of
the motion to sever below, Tracy's allegations of prejudice
were conclusory; they did not show with any particularity the
nature of the claimed prejudice. To make the requisite
strong showing of prejudice, a defendant must "present enough
information regarding the nature of the testimony he
wishes to give on one count and his reasons for not wishing
to testify on the other to satisfy the court that the
claim of prejudice is genuine and to enable it intelligently
to weigh the considerations of 'economy and expedition in
judicial administration' against the defendant's interest in
having a free choice with respect to testifying." Baker v.
United States, 401 F.2d 958, 977 (D.C. Cir. 1968); Bronco,
597 F.2d at 1303 ("[a]n accused should show the specific
testimony he will present about one offense, and his specific
reasons for not testifying about others, to justify
severance."). Because Tracy's claims of prejudice were
conclusory, the district court had no factual basis on which
to determine whether Tracy's claim of prejudice was genuine.
-9-
Tracy's claims of prejudice on appeal remain no more concrete
than formerly.2
Second, Tracy suggests that he was prejudiced when
evidence of both the 1989 and 1990 distributions was heard by
the jury. As a result, Tracy claims, the government was able
to "bootstrap" the credibility of Curtis Elwell. The jury,
however, acquitted Tracy of the counts dependent on Elwell's
testimony. Thus, Tracy's defense to the 1989 distributions
was not prejudiced by any bolstering of Elwell's credibility.
The district court carefully instructed the jury at
both the beginning and end of the case that it must consider
each charge separately and make a separate determination on
each count without regard to the others. See, e.g.,
Chambers, 964 F.2d at 1251; Gray, 958 F.2d at 15. By
repeatedly instructing the jury to consider each charge
separately, the district court "minimized any possible
prejudice" from the joinder of offenses. United States v.
Natanel, 938 F.2d 302, 308 (1st Cir. 1991), cert. denied, 112
S. Ct. 986 (1992). The jury, apparently taking heed of the
district court's clear instructions, acquitted Tracy of the
charged 1989 LSD distributions and convicted him on the 1990
2. At oral argument before this court, Tracy's counsel suggested for the first time that Tracy was prejudiced by the admission of prior convictions to impeach his credibility. As this argument was not presented below nor mentioned in Tracy's brief, it was waived. See, e.g., United States v.
Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S.
1082 (1990).
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distributions. See Natanel, 938 F.2d at 308; United States
v. Tashjian, 660 F.2d 829, 834 (1st Cir.), cert. denied sub
nom. Campbell v. United States, 454 U.S. 1102 (1981). The
jury's selectivity in its verdicts affords "reasonably good
assurance" that spillover prejudice did not result from
joinder of offenses. See Natanel, 938 F.2d at 308.
The district court did not abuse its discretion in
denying Tracy's motion to sever.
2. Prosecutorial Misconduct
Tracy next contends that the district court should
have dismissed the indictment in January 1991, when the
government revealed its intent to call a witness who was also
a client of Tracy's then-attorney, thereby forcing his
attorney to withdraw. Because the government did not call
the witness when the case eventually went to trial, Tracy
asserts prosecutorial misconduct.
As the government points out, the record refutes
the factual basis for Tracy's contention. Tracy's original
attorney withdrew because she learned that another client was
a potential witness for the defense, not for the government.
The week before Tracy's originally scheduled January trial
date, the government had disclosed the recorded statements of
its witnesses, including the grand jury testimony of
Detective Ron Gastia. Detective Gastia had mentioned the
name of a confidential informant who was also a client of
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Tracy's attorney. Believing the informant was a potential
witness for Tracy, but that such a role would be against the
informant's interest, Tracy's attorney discerned a conflict
and withdrew. Nothing in the record indicates that the
government was aware of the relationship between Tracy's
attorney and the confidential informant, or that the
government acted in any way but responsibly in disclosing
Detective Gastia's grand jury testimony. The district
court's denial of Tracy's motion to dismiss was not an abuse
of discretion.
3. Evidentiary Rulings
a. Evidence of Fear
Tracy argues that the district court erred in
admitting evidence of Wright's fear of Tracy. Tracy contends
that this testimony was irrelevant and unduly prejudicial
under Rule 403 of the Federal Rules of Evidence. Because
Tracy did not object to this testimony at trial, our review
is for plain error only. See, e.g., United States v.
Arboleda, 929 F.2d 858, 870 (1st Cir. 1991). Under this
standard, we will reverse a conviction only if an error
affects the "fundamental fairness of the trial." E.g.,
United States v. Vest, 842 F.2d 1319, 1326 n.4 (1st Cir.),
cert. denied, 488 U.S. 965 (1988).
Tracy cannot meet this high standard. Wright said
only a few words about his concerns for his safety while
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cooperating with the government. Such evidence of fear in
the context of drug deals is not unusual as the drug trade is
not a safe business. In fact, both Tracy and his step-
daughter testified of their own fear of Wright. Admission of
Wright's concerns for his safety plainly did not undermine
the "fundamental fairness of the trial."
b. Drug Culture
Tracy contends that the district court erred in
refusing to allow him to testify about the effects LSD had on
him. According to Tracy, the testimony would be relevant to
show that he was a user, and not a dealer of LSD. We will
reverse a trial court's Rule 403 relevance determinations
only for an abuse of discretion. E.g., United States v.
Rodriguez Cortes, 949 F.2d 532, 540-41 (1st Cir. 1991);
United States v. Green, 887 F.2d 25, 27 (1st Cir. 1989).
The district court's Rule 403 ruling was clearly
not an abuse of discretion. We fail to see how testimony of
the physical and psychological effects of LSD on Tracy was
relevant to whether Tracy was or was not a dealer of LSD.
Even accepting the dubious argument that being a user cuts
against being a dealer, ample evidence of use went in. The
court let Tracy testify that today's LSD just made him giggly
and did not produce hallucinations. He spoke of his drug
use, the availability and widespread use of drugs during his
youth, the availability of LSD among followers of the rock
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group Grateful Dead, and the nonprofit sharing of drugs among
the "rainbow community" to which Tracy apparently belonged.
The jury could have had few illusions.
c. Evidence of Flight
Tracy contends that the district court erred in
admitting, to show consciousness of guilt, evidence of his
flight to Florida and of his attempt to conceal his identity
when he was arrested there. According to Tracy, this
evidence was irrelevant and grossly prejudicial, and should
have been excluded under Rules 401 and 403 of the Federal
Rules of Evidence. Contrary to Tracy's assertions, evidence
of a defendant's flight and attempts to conceal or falsify
identity may be presented at trial as probative of a "guilty
mind" if "there is an adequate factual predicate creating an
inference of guilt of the crime charged." United States v.
Camilo Montoya, 917 F.2d 680, 683 (1st Cir. 1990) (quoting
United States v. Hernandez-Bermudez, 857 F.2d 50, 52 (1st
Cir. 1988)); United States v. Grandmont, 680 F.2d 867, 869
(1st Cir. 1982). In the present case, before the deputy
marshal from Florida testified, the government established
that Tracy had been scheduled for trial in August 1991 and
had failed to appear. Other independent evidence established
his drug dealings. There was a sufficient factual predicate
to justify the admission of the flight and concealment
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evidence and no abuse of discretion for the court to admit
it.
4. Pro Se Motions
Tracy contends that the district court erred in
refusing to consider several pro se motions which were
unsigned and which were filed in March and April, 1992, when
Tracy was represented by counsel. A district court enjoys
wide latitude in managing its docket and can require
represented parties to present motions through counsel. The
district court did not abuse its discretion in refusing to
consider Tracy's unsigned, pro se motions.3
5. Waiver
Tracy raises a host of other conclusory contentions
for which Tracy has provided virtually no argument and no
citation to authorities. Included among these bare
allegations are Tracy's "arguments" that the January and May
1991 jury empanelments subjected him to double jeopardy; that
his speedy trial rights were violated; that the district
court erred in refusing to allow him to impeach Curtis Elwell
with a fourteen-year-old conviction; that his due process
rights were violated because Elwell received a reduction in
sentence for cooperating with the government; and that there
3. Tracy also suggests that his convictions must be reversed because of the cumulative prejudicial effect of district court errors. Because we find that the district court did not err, we reject this argument.
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was insufficient evidence to support the jury's guilty
verdicts.
It is well settled that issues are deemed waived
when "adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation." See United States
v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S.
1082 (1990); United States v. Bell, 936 F.2d 337, 343 (7th
Cir. 1991. Notice pleadings do not suffice for appellate
briefs. See Fed. R. App. P. 28(a)(5) (appellant's argument
shall "contain the contentions of the appellant with respect
to the issues presented, and the reasons therefor, with
citations to the authorities, statutes and parts of the
record relied on."). Because Tracy has completely failed to
develop the arguments mentioned above, they are deemed
waived. Nevertheless, we have examined all of Tracy's
abandoned arguments and are independently satisfied that they
are without merit.
B. Sentencing
1. Amount of LSD
Tracy disputes the computation of the amount of LSD
involved in the attempted sale on August 22, 1990. The
district court assigned a weight to the LSD offered but not
sold on August 22 by extrapolating from the weight of the LSD
Tracy actually sold to Russell Wright on the two prior
occasions. The first sale on August 18 involved 20 doses,
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which weighed a total of .11 grams (.0055 grams per dose).
The second sale on August 20 involved 50 doses, which weighed
a total of .32 grams (.0064 grams per unit). Based on this
information, the court determined an average weight of .00595
grams per dose. The court then calculated a weight of .595
grams for the 100 doses involved in the third attempted sale.
This calculation produced a total weight for all three
offenses of 1.025 grams (.110 + .320 + .595), and a base
offense level of 26. Combined with Tracy's criminal history
category III, the calculation yielded a guideline range of 78
to 97 months.
Tracy contends that the district court erred as a
matter of law by failing to apply the Typical Weight Per Unit
Table found at application note 11 of the commentary to
U.S.S.G. 2D1.1.4 That table indicates that the typical
weight per unit for LSD is .05 milligrams (.00005 grams).
Applying this table, the total weight for all three offenses
would have been .435 grams (.110 + .320 + .005). This
4. Tracy also contends that the district court's calculation violates the due process clause of the Fifth Amendment, which provides a defendant with the right to be sentenced in accordance with accurate evidence. See Townsend v. Burke,
334 U.S. 736, 741 (1948). As discussed below, we find the district court's extrapolation from the previous two sales to provide a more accurate estimate of the amount of LSD involved in the third attempted sale than would the use of the Typical Weight Per Unit Table. We therefore reject Tracy's due process argument.
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computation would produce an offense level of 20, rather than
26, and a guideline range of 41 to 51 months.5
Application note 11 of U.S.S.G. 2D1.1 instructs
courts to use its Typical Weight Per Unit Table when the
number of doses, pills or capsules are known, but the weight
of the controlled substance is not known. The table displays
the typical weight per dose, pill or capsule for certain
controlled substances, including LSD. Application note 11,
however, specifically cautions courts not to use the table if
a more reliable estimate of the weight is available:
5. As an alternative, Tracy suggests that the district court should at least have used the lightest known sample to extrapolate the weight of the LSD in the third attempted sale. See United States v. Martz, 964 F.2d 787, 790 (8th
Cir.), (approving district court's use of lightest known sample), cert. denied, 113 S. Ct. 823 (1992); United States
v. Bishop, 894 F.2d 981, 987 (8th Cir.), cert. denied, 111 S.
Ct. 106 (1990) (same). Applying that method, the total weight for all three offenses would have been .980 grams (.110 + .320 + .550). The base offense level would then be 24, and the guideline range would be 63 to 78 months. We have said in the past that "'when choosing between a number of plausible estimates of drug quantity . . . a court must err on the side of caution.'" United States v. Sklar,
920 F.2d 107, 113 (1st Cir. 1990) (quoting United States v.
Walton, 908 F.2d 1289, 1301 (6th Cir.), cert. denied, 111 S.
Ct. 532 (1990)). Here, Tracy sold more than twice as many doses of LSD at the higher weight (.0064 grams) than at the lower weight (.0055 grams). Thus, the district court did err on the side of caution because, had the district court accounted for the greater number of doses sold at the higher weight, the average weight per dose would have equaled .0061 grams ([.11 + .32] divided by 70). Given these facts, we think the district court's averaging method was conservative and that it could permissibly conclude in all the circumstances of this case that this method produced a more reliable estimate of the amount of LSD involved in the third attempted sale than would extrapolating from the lightest known sample.
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The Typical Weight Per Unit Table, prepared from information provided by the Drug Enforcement Administration, displays the typical weight per dose, pill, or capsule for certain substances. Do not
use this table if any more reliable
estimate of the total weight is available
from case-specific information.
(emphasis added). Application note 11 further warns that the
table provides a very conservative estimate of weight for
certain substances, including LSD, because the weights
displayed in the table do not include the weight of the
mixture or substance containing the drugs:
* For controlled substances marked with an asterisk, the weight per unit shown is the weight of the actual controlled substance, and not generally the weight of the mixture or substance containing the controlled substance. Therefore, use of this table provides a very conservative estimate of the total weight.
LSD is marked with an asterisk.
A district court's finding of the amount of drugs
involved in an offense will be overturned on appeal only upon
a showing of clear error. E.g., United States v. McCarthy,
961 F.2d 972, 978 (1st Cir. 1992); United States v. Zuleta-
Alvarez, 922 F.2d 33, 37 (1st Cir. 1990), cert. denied, 111
S. Ct. 2039 (1991). In the present case, the district court
did not err in refusing to apply the Typical Weight Per Unit
Table. The district court's finding of the quantity of LSD
involved in the third attempted sale was based on the weight
of the actual doses (on the same yellow paper with black
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airplanes), that Tracy had sold just days before the third
attempted sale. Where this "case-specific information" was
available, the court was warranted under note 11 in using the
former in preference to the Typical Weight Per Unit Table.
See U.S.S.G. 2D1.1, application note 11; United States v.
Bishop, 894 F.2d 981, 987 (8th Cir.), cert. denied, 111 S.
Ct. 106 (1990). The table produces conservative estimates
that, among other things, do not account for the weight of
the "mixture or substance" containing the LSD. As the weight
of LSD blotter paper is considered a "mixture or substance"
that should be included in calculating the amount of LSD for
sentencing, Chapman v. United States, 111 S. Ct. 1919, 1925
(1991), the district court properly employed the higher
average weight extrapolated from the two prior sales of LSD-
infused yellow blotter paper, rather than the more
conservative estimate derived from the Typical Weight Per
Unit Table. See United States v. Shabazz, 933 F.2d 1029,
1034 (D.C. Cir.) (Thomas, J.) ("note 11 was designed to
address problems of uncertainty, not to undermine the
preference that sentences be determined according to the
weight of the mixture or substance if possible."), cert.
denied sub nom. McNeil v. United States, 112 S. Ct. 431
(1991).
2. Acceptance of Responsibility
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Tracy argues that the district court clearly erred
in refusing to adjust his base offense level on the failure
to appear count for acceptance of responsibility pursuant to
U.S.S.G. 3E1.1. According to Tracy, he has been open and
remorseful with the court since the inception of that charge.
He notes that he confessed his failure to appear when he was
first brought back from Florida, and that he eventually pled
guilty to that charge. He quotes a letter that he sent to
the district court, which stated "I have clearly made it
known that I accept responsibility for [failing to appear]
and truly regret making that decision. At that time I was
worried about the child that I thought my wife was carrying,
and was a very confused and scared man. But I regret my
actions and have apologized to this court for them."
A defendant is entitled to a two-level downward
adjustment for acceptance of responsibility if the defendant
"clearly demonstrates a recognition and affirmative
acceptance of personal responsibility for his criminal
conduct." U.S.S.G. 3E1.1(a). Although a guilty plea is
"significant evidence" of acceptance of responsibility, it
does not, by itself, compel a downward adjustment, since
"this evidence may be outweighed by conduct of the defendant
that is inconsistent with such acceptance of responsibility."
U.S.S.G. 3E1.1, application note 3, United States v. Pavao,
948 F.2d 74, 79 (1st Cir. 1991). A sentencing judge's
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determination concerning acceptance of responsibility will be
overturned only if clearly erroneous. E.g., United States v.
Royer, 895 F.2d 28, 29 (1st Cir. 1990).
The district court's determination that Tracy did
not genuinely accept responsibility for his failure to appear
is amply supported by the record. Tracy used false
identification in an attempt to conceal his identity even
after Florida authorities confronted him. See United States
v. Yeo, 936 F.2d 628, 629 (1st Cir. 1991) (use of false name
supported denial of downward adjustment for acceptance of
responsibility). Further, after observing Tracy's demeanor,
the district court concluded that he was opportunistic and
would say anything to minimize his sentence. Under these
circumstances, we cannot say that the district court clearly
erred in refusing to adjust Tracy's base offense level for
acceptance of responsibility.
3. Obstruction of Justice
Pursuant to 18 U.S.C. 3742(b), the government
appeals from the district court's refusal to enhance Tracy's
sentence for obstruction of justice under U.S.S.G. 3C1.1.
The government argues that Tracy knowingly perjured himself
when testifying about the August 22, 1990 attempted sale,6
6. The alleged perjury consisted of Tracy's testimony that the third attempted sale involved artificial LSD on blue blotter paper. This testimony was directly contrary to Wright's testimony that he saw the 100 doses of LSD that Tracy attempted to sell on August 22, and these doses were on
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and that, therefore, an enhancement for obstruction of
justice was mandatory.
U.S.S.G. 3C1.1 provides the following:
If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.
Application note 3(b) specifically identifies the commission
of perjury as the kind of conduct to which this enhancement
applies. U.S.S.G 3C1.1, application note 3(b).
The Supreme Court has recently provided guidance on
the application of U.S.S.G. 3C1.1 to perjured testimony.
See United States v. Dunnigan, 61 U.S.L.W. 4180 (U.S.
February 23, 1993). In Dunnigan, the Supreme Court ruled
that once a district court finds that a defendant has
committed perjury, the court must enhance the defendant's
base offense level by two points for obstruction of justice.
Id. at 4184; see United States v. Austin, 948 F.2d 783, 788-
89 (1st Cir. 1991). In determining what constitutes perjury,
the Court told sentencing courts to apply the generally
accepted definition of perjury in the federal criminal
perjury statute, 18 U.S.C. 1621.7 61 U.S.L.W. at 4182-83.
the same yellow blotter paper with black airplanes that Tracy had sold on the two prior occasions.
7. 18 U.S.C. 1621 provides in relevant part the following:
Whoever
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Under that definition, a witness testifying under oath or
affirmation commits perjury if he or she "gives false
testimony concerning a material matter with the willful
intent to provide false testimony, rather than as a result of
confusion,mistake orfaultymemory." Id.at 4183(emphasisadded).
The Court in Dunnigan stressed that, in order to
impose a 3C1.1 enhancement, a sentencing court "must make
independent findings necessary to establish a willful
impediment to or obstruction of justice, or an attempt to do
the same, under the perjury definition," i.e., the
sentencing court "must make findings to support all the
elements of a perjury violation in the specific case." Id.
The Court further preferred that sentencing courts "address
each element of the alleged perjury in a separate and clear
finding." Id. Such express findings, according to the
Court, help to ensure that sentences will not be enhanced "as
(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true . . .
is guilty of perjury . . . .
18 U.S.C. 1621(1).
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a matter of course whenever the accused takes the stand and
is found guilty." Id.8
In refusing to apply the enhancement for
obstruction of justice in the present case, the district
court said,
[It] is a very close call. It is apparent to the Court that the jury rejected the credibility of this defendant and of his testimony at trial. This Court was present at that time and heard that testimony. This Court, too, disbelieved the accuracy of his testimony.
Nevertheless, there are many policy considerations that surround the question of enhancing a base offense level which increases potential punishment on the basis of the Court's conclusion that perjury has been committed. And the Court simply is not comfortable in its
8. The Supreme Court in Dunnigan also emphatically rejected,
as has virtually every circuit court, the argument that an enhanced sentence for perjury undermines a defendant's right to testify. 61 U.S.L.W. at 4183; United States v. Batista-
Polanco, 927 F.2d 14, 22 (1st Cir. 1991); United States v.
Matos, 907 F.2d 274, 276 (2d Cir. 1990); United States v.
Wallace, 904 F.2d 603, 604-05 (11th Cir. 1990). "[A]
defendant's right to testify does not include a right to commit perjury." Dunnigan, 61 U.S.L.W. at 4183. We reject
Tracy's argument to the contrary. We also find no merit in the related contention that Tracy's denial of guilt under oath at trial cannot be the basis of an enhancement under U.S.S.G. 3C1.1. While application note 1 to 3C1.1 does provide that a defendant's denial of guilt is not a basis for an enhancement, the note expressly excludes from this prohibition "a denial of guilt under oath that constitutes perjury." U.S.S.G. 3C1.1, application note 1. As we have stated in the past, "'the authorized procedure for asserting innocence in a criminal proceeding is the tender of an unsworn 'not guilty' plea.'" United States v. Brum, 948 F.2d 817, 820 (1st Cir. 1991)
(quoting Batista-Polanco, 927 F.2d at 22).
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own mind in concluding that the conduct amounts to perjury of sufficient significance to justify such an enhancement.
The government contends that as the district court,
in the above-quoted passage, found that Tracy committed
perjury, the two-level enhancement for obstruction of justice
was mandated. Quoting the very same passage, Tracy contends
that the district court did not find perjury, and more
particularly that the district court did not make a specific
finding that Tracy had willfully lied.
We agree with Tracy that it is not clear from the
district court's discussion of obstruction of justice whether
the court found that all the elements of perjury were
satisfied. While the district court expressly stated that it
"disbelieved the accuracy of [Tracy's] testimony," we are
unable to determine whether the court also found that the
testimony concerned a material matter, or that Tracy
intentionally provided the false testimony.9 It is also
9. The government suggests that we can imply from the district court's discussion in connection with its ruling on the issue of acceptance of responsibility, that the district court believed that Tracy had knowingly not told the truth in his trial testimony. We decline the invitation. To "imply" a finding of willful intent to commit perjury on the basis of a district court's general comments not made in connection with the court's perjury discussion would stretch too far, especially in a case where the court itself declined to find obstruction. We note also the Supreme Court's direction in Dunnigan that district courts "must make independent findings
to establish a willful impediment to or obstruction of justice, or an attempt to do the same, under the perjury definition." 61 U.S.L.W. at 4183.
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possible to interpret the district court's statements as
finding perjury, but requiring something more than basic
perjury to justify an enhancement for obstruction of justice.
We think the proper resolution, in these
circumstances, is to vacate the sentence and remand to the
district court "to make findings to support all the elements
of a perjury violation," or to articulate clearly the
elements it believes have not been satisfied. See Dunnigan,
61 U.S.L.W. at 4183. In making this determination, the
district court, inter alia, should be guided by the Supreme
Court's opinion in Dunnigan, the definition of perjury set
forth in the federal criminal perjury statute, 18 U.S.C.
1621, and case law interpreting that definition, see, e.g.,
United States v. Moreno Morales, 815 F.2d 725, 747 (1st Cir.)
("A statement is material if it is 'capable of influencing
the tribunal on the issue before it.'" (quoting United States
v. Scivola, 766 F.2d 37, 44 (1st Cir. 1985) (citations
omitted))), cert. denied, 484 U.S. 966 (1987). If, after
reviewing the testimony, the district court is of the "firm
conviction" that Tracy committed perjury, then the district
court must impose a two-level enhancement for obstruction of
justice. See, e.g., United States v. Torres, 960 F.2d 226,
228 (1st Cir. 1992); United States v. Brum, 948 F.2d 817, 819
(1st Cir. 1991); United States v. Rojo-Alvarez, 944 F.2d 959,
969 (1st Cir. 1991); United States v. Batista-Polanco, 927
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F.2d 14, 22 (1st Cir. 1991); United States v. Akitoye, 923
F.2d 221, 228 (1st Cir. 1991).
Tracy's conviction is affirmed. His sentence is
vacated and remanded for resentencing in accordance with this
opinion.
So ordered.
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