UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 93-1713
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN L. TRACY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Torruella, Cyr and Boudin,
Circuit Judges.
J. Michael McGuinness, by Appointment of the Court, with whom
McGuinness & Parlagreco was on brief for appellant.
Michael M. DuBose, Assistant United States Attorney, with whom
Jay P. McCloskey, United States Attorney, was on brief for the United
States.
September 28, 1994
BOUDIN, Circuit Judge. John Tracy was indicted by a
federal grand jury in Maine on five counts of distribution or
attempted distribution of LSD in violation of 21 U.S.C.
841(a)(1), 846. Tracy failed to appear for his scheduled
trial in August 1991 and was arrested two weeks later in
Florida, carrying a false identification and pretending to be
someone else. He was then separately indicted for failing to
appear in violation of 18 U.S.C. 3146(a)(1).
In October 1991, Tracy was convicted by a jury on three
of the five drug counts and acquitted on two others. The
following month he pleaded guilty to the failure to appear
charge. In April 1992, Tracy was sentenced to 97 months on
the drug convictions and an additional 24 month term, to run
consecutively to the first sentence, for Tracy's failure to
appear for trial.
Tracy then appealed but this court rejected all of
Tracy's claims as to both convictions and sentence. United
States v. Tracy, 989 F.2d 1279 (1st Cir. 1993). The United
States cross-appealed because of the district court's refusal
to enhance Tracy's sentence for obstruction of justice. See
U.S.S.G. 3C1.1. On the government's appeal this court
remanded for further proceedings. See 989 F.2d at 1288-90.
The facts pertaining to the remand need to be briefly
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recounted, as the remand is the predicate for the present
appeal.
In the original pre-sentence report following Tracy's
convictions and guilty plea, the probation officer said that
the drug weight established a base offense level of 26. The
officer recommended a two-level enhancement for obstruction
of justice, because of an asserted direct contradiction
between Tracy's trial testimony and that of Russell Wright,
an individual who had purchased drugs from Tracy while
secretly cooperating with Maine's Bureau of Intergovernmental
Drug Enforcement. Tracy had claimed that the final drug
transaction involved fake LSD. Wright had given testimony
pointing in the other direction, and the jury seemingly had
believed that Tracy was not telling the truth.
Based on Tracy's criminal history category, the
recommended two-point enhancement (to a level of 28) would
have created a sentencing guideline range of 97 to 121
months. At sentencing, the district court declined to impose
the two-point enhancement. The 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 this testimony.
Nevertheless, there are many policy considerations that surround the question of enhancing a base offense level which
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creates potential punishment on the basis of the Court's conclusion that perjury has been committed. And the Court is simply not comfortable in its own mind in concluding that the conduct amounts to perjury of sufficient significance to justify such an enhancement.
Absent the enhancement, the base offense level remained
at 26 and the guideline range was therefore 78 to 97 months.
The district court imposed a sentence of 97 months for the
drug offenses, as well as the separate consecutive 24 month
sentence--not here in issue--for the failure to appear
offense. Apparently, as a matter of principle, the
government appealed the district court's refusal to adopt the
two-point enhancement.
On the appeal, this court held that under United States
v. Dunnigan, 113 S. Ct. 1111 (1993), the obstruction of
justice enhancement is mandatory under U.S.S.G. 3C1.1 where
the defendant willfully obstructed or attempted to obstruct
the administration of justice during the prosecution of the
case. The application note specifically identifies perjury
as conduct comprising obstruction, U.S.S.G. 3C1.1, comment.
(n.3(b)), and Dunnigan requires sentencing courts to apply
the generally accepted definition of perjury under 18 U.S.C.
1621, 113 S. Ct. at 1116.
The Supreme Court said that, under the statutory
definition of perjury, a witness commits perjury if he or she
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"gives false testimony concerning a material matter with a
willful intent to provide false testimony, rather than as a
result of confusion, mistake or faulty memory." 113 S. Ct.
at 1116. Dunnigan added that the sentencing court must "make
independent findings necessary" to establish the enhancement
and that "it is preferable for a district court to address
each element of the alleged perjury in a separate and clear
finding." Id. at 1117.
On the original appeal in Tracy, this court said that
the district court had made clear that it found Tracy's
testimony inaccurate but had not specifically found that the
testimony concerned a material matter or that the inaccuracy
was deliberate. 989 F.2d at 1289-90. At the same time, this
court made clear that under the guideline and Dunnigan, the
district court could not both find perjury and yet require
"something more than basic perjury to justify an enhancement
. . . ." Id. at 1290. In other words, the enhancement had
to be imposed where the requisites of perjury existed.
On remand, the government apparently asked the
district court to make an explicit finding that Tracy's
testimony, contradicted by Wright, had been perjurious. But
having made its point, the government professed itself
satisfied with the 97-month sentence previously imposed for
the drug counts, noting that it was a permissible sentence
under the new guideline range that would result if the
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district court did find perjury and added the two-level
enhancement to the base offense level of 26. The district
court took quite a different course.
Instead of focusing upon the instance of possible
perjury identified by the probation officer, the district
court held a hearing on remand, in June 1993, and determined
that Tracy had lied at his trial on two other points: in
testifying that he had sold LSD to Wright only because he was
afraid of Wright, and in claiming that he had left Maine for
Florida because he believed his girlfriend to be pregnant but
intended after the child's birth to return to Maine and stand
trial. The court found that these lies were willful and
material and that the requirements of perjury were therefore
satisfied.
The two-level enhancement based on these perjury
findings increased Tracy's offense level to 28, yielding a
guideline range of 97 to 121 months for one with Tracy's
criminal history. As he had done in the first instance, the
district judge sentenced Tracy at the top of the guideline
range. This time, however, the range went higher and the
sentence now imposed on the drug counts was 121 months. As
before, this is to be followed by a 24-month term on the
failure to appear count. Tracy has now appealed from this
new sentence.
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On appeal, Tracy contends that the district court could
not on this record properly find perjury. His appellate
brief contrasts Tracy's situation with that of the defendant
in Dunnigan where the Supreme Court pointed to "numerous
witnesses" contradicting the defendant on "so many facts on
which she could not have been mistaken." 113 S. Ct. at 1117.
Tracy's brief also tries to focus attention on the original
conflict between Tracy and Wright, one part of which involved
the color and design of the blotter paper on which the LSD
was tendered.
The district court's findings that perjury occurred in
this case can be overturned only if they are clearly
erroneous. See United States v. Aymelek, 926 F.2d 64, 68
(1st Cir. 1991). In this instance, there is ample evidence
in the record to support the district court's determination
that there were two separate episodes of perjury (either one
would suffice for an enhancement). Although Tracy's brief
does not argue in detail about the adequacies of the
evidence, we have nevertheless reviewed the record and
recount the evidence quite briefly.
At his trial, Tracy had offered an entrapment defense--
the transactions were difficult to deny since they had been
recorded--and in aid of that defense, he had testified that
he had been afraid of Wright because of Wright's aggressive
manner. Tracy's sixteen year old stepdaughter testified that
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she had been frightened by Wright and in other respects
supported Tracy's claim of fear. On the other hand, because
the drug transactions had been monitored and recorded, there
was also evidence from witnesses, presumably supported by the
tapes, that at no point had Wright said anything to threaten
or intimidate Tracy.
The district judge at the hearing after remand expressly
found Tracy had manufactured the intimidation defense and
that it was "known by the witness at the time to be untrue
and it goes to a material element of the case against him."
The district court judge heard Tracy and his stepdaughter
testify and also had before him the evidence that no threats
or intimidating remarks were made by Wright. Obviously, the
presence or absence of fear in Tracy's mind is a subjective
matter. But the district judge did not commit clear error
when he weighed the conflicting inferences and found that
Tracy had lied about his own state of mind.
In particular, Tracy's claim that he was in fear of
Wright must have been very hard to reconcile with Tracy's own
claim that in the final abortive sale he had attempted to
sell Wright fake LSD (and was therefore not guilty of a drug
offense regardless of entrapment). The notion that one would
sell fake drugs to a buyer whom one knows and fears, and who
could easily return to retaliate, is doubtful on its face.
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Tracy's explanation--that Wright would merely seek to get his
money back--sounds especially lame.
In the second perjury episode, concerning Tracy's
failure to appear for trial, the inferences are not even
close. Tracy obtained several postponements and then,
instead of appearing on the final trial date, absconded to
Florida. At trial, the government offered evidence that he
had fled, coupled with further evidence that when caught he
was carrying false identification and using a false name, in
order to create an inference of guilt on the drug counts.
Tracy's own testimony-- that he had gone to Florida merely to
be with his pregnant girlfriend during the birth of their
child and intended to return to trial--was material testimony
because it sought to refute the inference that he had fled
because he was guilty.
Most people would be fairly skeptical at Tracy's claim
that he had coincidentally learned of the possible pregnancy
just before the date of his oft-postponed trial and had
departed without explanation from Maine for the purpose of
bringing comfort to his girlfriend. They would be even more
skeptical of Tracy's claim that by coincidence he was (so he
claimed) about to return to Maine just when he was arrested.
News that Tracy had given a false name when arrested and had
been carrying a driver's license and birth certificate in the
name of another person would for most people convert
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skepticism into hardfast disbelief. The evidence, in sum,
was sufficient to support the perjury finding.
Turning from the evidence to other claims of error, we
begin with Tracy's assertion that the district court made its
Dunnigan findings "in the most conclusory and threadbare
fashion" and "inadequately explained its basis for its
purported findings . . . ." Tracy does not deny that the
district judge made, for both perjury episodes, each of the
three ultimate findings of inaccuracy, willfulness and
materiality. Nor is there any confusion about what
statements were found perjurious: the district court took
the occasion to identify (by line and page numbers) six
separate perjurious statements by Tracy, four relating to the
intimidation claim and two to the Florida flight. Yet,
putting aside rhetoric about threadbareness, Tracy is in
substance correct that there are no further subsidiary
findings, nor any explanation of the district court's
analysis or evaluation of Tracy's testimony to underpin the
trial judge's finding that Tracy was willfully and materially
inaccurate.
But the district court had no obligation to provide such
subsidiary findings or, as would be more pertinent here, an
explanation as to the district court's own reasoning process.
There is no such requirement in sentencing determinations,
and Dunnigan imposed nothing more than a requirement that the
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requisites of perjury be found, preferably in explicit and
separate findings. In fact, it is commonplace in sentencing
for a district judge to announce the court's factual
conclusion--e.g., the quantity of drugs foreseen by the
defendant or the presence of a weapon--without in any way
providing subsidiary findings or an evaluation of conflicting
evidence.
On review, the appeals court must be able to ascertain
the ultimate finding and there must be evidence (regardless
of whether it has been specifically identified by the
district judge) that would permit a reasonable fact finder to
make such a determination, giving such deference to the fact
finder as may be appropriate. Perhaps in some cases it would
be impossible to exercise a review function without further
information about what the district judge had found or how he
or she had reasoned about the evidence. For the most part,
as here, no such need exists. In this respect we normally
review the evidence and the result, but not the reasoning by
which the result was reached by the district court.
This discussion also answers the substance of Tracy's
related claim, namely, that the district court failed to
explain why it rejected the possibility of mistake in
appraising Tracy's testimony. The Supreme Court did advert
in Dunnigan to the possibility of "confusion, mistake or
faulty memory." 113 S. Ct. at 1117. But where as here the
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evidence would permit a reasonable fact finder to conclude
that an inaccuracy was willful rather than mistaken, the
judge has no separate obligation to explain why he or she
rejected the inference of mistake and adopted the inference
of willfulness. This brings us to Tracy's next point.
His appeal brief calls our attention to commentary to
U.S.S.G. 3C1.1 that "[i]n applying this provision in
respect to alleged false testimony or statements by the
defendant, such testimony or statements should be evaluated
in a light most favorable to the defendant." Id. comment.
(n.1). Tracy is apparently under the impression (based on
other statements in his brief) that this quoted language
means that, in general, "close" cases under section 3C1.1
must be resolved in favor of the defendant. This is a
misreading of the commentary and an exaggeration of the
government's burden.
We have repeatedly said that this "commentary" "does not
mandate the resolution of every conflict in testimony in
favor of the defendant"; it merely resolves in the
defendant's favor "those conflicts about which the judge,
after weighing the evidence, has no firm conviction." United
States v. Rojo-Alvarez, 944 F.2d 959, 969 (1st Cir. 1991)
(quoting other circuits). Otherwise, "the safeguard would
swallow the rule in a single gulp," United States v.
Akitoye, 923 F.2d 221, 228 (1st Cir. 1991), since to take the
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evidence in the light most favorable to the defendant is to
credit his or her testimony. In this case, the trial judge
did have a firm, and amply warranted, conviction that perjury
had been committed.
We note, in addition, that the quoted commentary read
literally addresses a rather narrow problem peculiar to
perjury and other charges that match a defendant's testimony
against "the truth" as later found by the judge or jury.
Words, even in context, can be subject to more than one
plausible reading; and this is as true in parsing the
testimony of a defendant at trial as in construing a statute.
In a perjury case, one of the plausible readings may be in
conflict with "the truth" and undoubtedly willful if that
meaning were intended; the other reading, also plausible but
perhaps less so, may render the defendant's statement
accurate, or at least make willfulness unlikely.
The precise words of quoted commentary say that in such
cases the defendant's "testimony or statement" should be read
in the light most favorable to the defendant. To the extent
that an innocent reading may be plausible (even though
perhaps less plausible than an inculpatory one), the
commentary resolves this doubt in favor of the defendant.
The Sixth Circuit recently put the matter thusly:
We note that this [commentary] does not require that the evidence in its
entirety be taken in a light most
favorable to the defendant. It is only
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the defendant's statement that is to be taken in a light most favorable to him. So, if the meaning of the defendant's statement is ambiguous, the ambiguity should be resolved in his favor to prevent a finding of perjury when the defendant's statement, taken another way, would not have been perjurious.
United States v. Crousore, 1 F.3d 382, 385 (6th Cir. 1993).
Here, as in Crousore, there is no ambiguity in the
meaning of Tracy's statements. We hasten to add that there
is also nothing that suggests that the present case was a
close one as to either inaccuracy or willfulness. Still less
is there any possibility of a mistake, that is, testimony
that was not true but was honestly believed to be so when
delivered. The color and design of the blotter paper might
have involved a possibility of mistake, but Tracy could not
have been mistaken about his fear or lack of fear of Wright,
or about his motive for going to Florida (putting aside
psychological subtleties that are not involved in this case).
We conclude by rejecting, and mildly reprimanding,
Tracy's claim that a reasonable doubt of perjury existed in
the trial judge's own mind. Tracy's brief quotes the trial
judge as saying, at the original sentencing, that he was then
"not comfortable in its own mind in concluding that the
conduct amounts to perjury . . ." (sic). Tracy argues that,
if the district court had such a doubt about the presence of
perjury, then the government could not have met its burden.
Apart from the fact that the district court was then talking
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about a different perjurious episode (the fake LSD claim),
the argument is undercut by other words of the judge not
quoted in Tracy's brief.
The full sentence was as follows: "And the Court simply
is not comfortable in its own mind in concluding that the
conduct amounts to perjury of sufficient significance to
justify an enhancement." Reading this full sentence in the
context of the two full paragraphs (quoted earlier in this
opinion), one would probably conclude that when the district
court said that this was a "close call" and said it was "not
comfortable in its own mind," it was referring not to the
evidence of inaccuracy or willfulness or even materiality but
rather to the policy arguments against sanctioning a
defendant for testifying at trial in any but the most extreme
case.
We were ourselves uncertain enough about the district
court's intention to remand, but we do not think that this
doubt warranted Tracy's brief in omitting the balance of the
sentence it quoted. As it happens, on remand the district
judge addressed this very issue, explaining that he had
originally given the defendant the benefit of the doubt on
the enhancement because "I was very concerned that, as a
matter of policy, imposition of that kind of enhancement
might chill other defendants' exercise of their right to
testify at trial." Needless to say, the district court's
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concern is a reasonable one, but Dunnigan binds us and the
district court alike. Any charge that the district court's
original policy doubts and present findings are inconsistent
is without basis.
Tracy's final claim concerns an amendment to the
sentencing guidelines that became effective after the
district court resentenced Tracy in the remanded proceeding.
Effective November 1, 1993, the sentencing guidelines have
altered the method for computing LSD in a manner that Tracy's
brief claims is favorable to his position and would result in
a lower guideline range. U.S.S.G. App. C, Amendment 488.
The Sentencing Commission has determined that the amendment
applies retroactively. Id., Amendment 502. See 28 U.S.C.
994(u). A sentence imposed before the new computational
method can therefore be readjusted by the district court to
conform to the amended approach. 18 U.S.C. 3582(c)(2).
Tracy at the close of his brief asks that we remand the
matter to the district court to permit resentencing in
accordance with the amendment. Such a recomputation,
however, presents issues of fact and may involve other
questions about which the government and Tracy differ. The
statute providing for retroactive adjustments allows the
defendant to file a motion with the district court seeking
such an adjustment. 18 U.S.C. 3582(c)(2). Our affirmance
in this case is without prejudice to Tracy's right to do so.
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We have a final observation about the government's
earlier appeal. It now appears from its position at the
remand hearing that the government was satisfied with the
sentence originally imposed. Yet as a result of the
government's appeal Tracy has now to serve an additional two
years over and above the ten years' imprisonment originally
imposed. Some portion of the full sentence reflects Tracy's
criminal history, and his flight to Florida. But neither a
ten nor a twelve-year sentence could be called unduly
lenient.
Understandably, the government wished to establish the
principle that perjury, and not "something more," merits an
enhancement. But this point could have been made as easily
in a later case where the government actually wanted a longer
sentence. A litigant is not obligated to worry about the
price paid by others to establish a matter of principle.
Still, one hopes that a prosecuting agency would weigh the
price in its own calculus.
Affirmed.
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