USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1176
UNITED STATES OF AMERICA,
Appellee,
v.
JULIAN DUPONT,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Boudin, Circuit Judge,
_____________
and Pollak,* Senior District Judge.
_____________________
____________________
Howard J. Castleman with whom Janis M. Berry, by Appointment of
____________________ _______________
the Court, and Ropes & Gray were on brief for appellant.
____________
David A. Vicinanzo, Assistant United States Attorney, with whom
___________________
Peter E. Papps, United States Attorney, and Jean B. Weld, Assistant
_______________ _____________
United States Attorney, were on brief for the United States.
____________________
January 31, 1994
____________________
____________________
*Of the Eastern District of Pennsylvania, sitting by designation.
BOUDIN, Circuit Judge. Julian Dupont was indicted in
_____________
November 1988, together with many others, for participating
in a drug trafficking ring headed by Jean Lemieux. Pursuant
to a plea agreement Dupont pleaded guilty to one count
charging him with conspiracy to possess with intent to
distribute. In the agreement the government stipulated with
Dupont that Dupont had conspired to distribute about 4.5
kilograms of cocaine. The government also agreed to
recommend a sentence of five years' imprisonment. Despite
that recommendation, on August 15, 1989, the district court
sentenced Dupont to seven years in prison.1
In this case, the most recent of several attempts by
Dupont to alter his sentence or limit forfeitures, Dupont in
a section 2255 proceeding persuaded the district court that
he was entitled to be resentenced. The court found that at
the original sentencing Dupont and his counsel had not been
provided sufficient time to review the pre-sentence report
and that findings had not been made on certain disputed
issues, as provided for in the then-applicable version of
Fed. R. Crim. P. 32(c)(3). The court scheduled a
resentencing hearing and made clear that either side could
present evidence.
____________________
1The Sentencing Guidelines did not apply to the offense
and the district court was limited only by the statutory
maximum of 20 years.
-2-
-2-
At the resentencing hearing on February 9, 1993, the
government offered two witnesses. Most important, Lemieux--
whose sentence had been reduced from almost 20 years to seven
years in exchange for his help to the government in several
trials--appeared. Countering Dupont's claim that he was only
a minor player in the ring, Lemieux testified that Dupont
introduced Lemieux to a new source of cocaine, that Dupont
acted as his partner and shared profits for a year while
Lemieux was doing kilogram size deals, and that Dupont joined
him on over 10 trips to collect cocaine from the new source.
Agent Ryan, who had testified at the first sentencing
hearing, testified again. He reaffirmed that over $20,000
had been seized at Dupont's residence, and he now described
the DEA's seizure of a 125 pound scale, two rifles and a .25
calibre handgun, which was found in Dupont's bedroom. Ryan,
who had not been present at the arrest, was apparently
relying on information from the arresting agents. He
conceded that only small amounts of cocaine had been seized
at the arrest.
The district court then resentenced Dupont to seven
years' imprisonment. The court credited Lemieux's testimony
and found that Dupont was "a substantial drug dealer" who had
offered no assistance to the government. The court described
the items found in the apartment as tools of the trade. It
also referred to the role of Carlos Arboleda--a major Florida
-3-
-3-
source, see United States v. Arboleda, 929 F.2d 858 (1st Cir.
___ _____________ ________
1991)--in supplying the Lemieux conspiracy. Lemieux had
testified that Dupont knew that Arboleda was one of Lemieux's
other sources of cocaine.
On this appeal from the resentencing, Dupont begins his
attack by arguing that this court should follow the Third
Circuit and hold that the government must produce to the
defense prior statements of the witnesses whom it offers at
sentencing proceedings. See United States v. Rosa, 891 F.2d
___ _____________ ____
1074 (3d Cir. 1989).2 This rule, urges Dupont, would be a
proper exercise of this court's supervisory power in view of
the enormous impact of sentencing determinations. No request
for such statements was made by defense counsel at the
resentencing, and no such statements were produced by the
government.
We think that there is little reason to consider
extending Jencks retroactively in a case where, even if the
______
Jencks Act applied by its own terms, no appeal would be
permitted because no request for the materials was made.
Jencks Act, 18 U.S.C. 3500(b) (materials to be produced "on
motion of the defendant); see United States v. Mack, 892 F.2d
___ _____________ ____
____________________
2The Jencks Act, 18 U.S.C. 3500, codifying Jencks v.
______
United States, 353 U.S. 657 (1957), imposes this requirement
______________
with respect to government witnesses at trials. Effective
December 1, 1993, a new amendment, Fed. R. Crim. P. 32(e),
codifies Rosa and extends Jencks to sentencing hearings,
____ ______
provided that a request is made by defendant. See Fed. R.
___
Crim. P. 26.2.
-4-
-4-
134, 137 (1st Cir. 1989), cert. denied, 111 S. Ct. 162
____________
(1990). Dupont could easily have made the request in the
district court. While a district court might well be
reluctant to make new law by adopting the Third Circuit's
approach simpliciter, nothing prevented Dupont from trying to
___________
show the district court why prior statements were critically
important in this case.
We might overlook the failure to make either a request
or a detailed showing if there were any indication that a
miscarriage of justice had resulted. On the contrary, in
this instance the discrepancies in Ryan's testimony between
the first and second hearing are minor and would have been
apparent from reviewing a transcript of the first hearing.
As to Lemieux, a far more damaging witness, the district
court deemed him credible despite the very large reduction in
sentence he had received for his past aid to the government.
There is no hint that anything in Lemieux's prior statements
would have altered that judgment, and pure speculation is no
evidence that justice has miscarried.
Dupont's brief next recasts the Jencks Act argument as a
______
Brady argument, contending that the government failed to
_____
disclose exculpatory material. See Brady v. Maryland, 373
___ _____ ________
U.S. 83 (1963). The main materials identified are prior
-5-
-5-
statements of Lemieux and statements or notes of Agent
Ryan.3 While impeachment material may sometimes qualify as
exculpatory under Brady, we have no reason to believe that
_____
any of the prior statements significantly undermined the
testimony of the government witnesses. There is even less
basis for finding "a reasonable probability" that disclosure
would have altered the result. United States v. Bagley, 473
_____________ ______
U.S. 667, 682 (1985) (plurality opinion).
Next, Dupont contends that "due process requires that a
defendant not be sentenced upon materially untrue assumptions
or misinformation" and argues that such a violation occurred
in this case. Although the Supreme Court used related
language in Townsend and it is echoed in our decisions,4 it
________
would be hard to find a general statement so often
misunderstood. Only a naive observer could doubt that
defendants are from time to time convicted and sentenced on
___
____________________
3Dupont also says that the government did not disclose
that it had returned $75,000 seized from Lemieux so that he
could pay attorney's fees. This fact, stated in the Arboleda
________
decision, 929 F.2d at 865 n.10, pales in importance when
compared with the drastic reduction in sentence received by
Lemieux, a benefit fully disclosed in the resentencing
hearing.
4Townsend v. Burke, 334 U.S. 736, 740-41 (1948) (due
________ _____
process violated, "while disadvantaged by lack of counsel,
this prisoner was sentenced on the basis of assumptions
concerning his criminal record which were materially untrue")
(Jackson, J.); United States v. Curran, 926 F.2d 59, 61 (1st
_____________ ______
Cir. 1991) ("defendant has a due process right to be
sentenced upon information which is not false or materially
incorrect").
-6-
-6-
the basis of "materially untrue assumptions or
misinformation": witnesses may lie, or make mistakes, and
trial juries or sentencing judges may believe them. It does
happen.
Yet no one supposes that a defendant can relitigate any
issue of fact at any time he or she likes merely by invoking
the due process clause and offering to show that a mistake
was made. "[E]ven an erroneous judgment, based on a
scrupulous and diligent search for truth, may be due process
of law." Townsend, 334 U.S. at 741. Townsend involved a
________ ________
defendant, unrepresented by counsel at sentencing, whose
sentence was seemingly enhanced based on three nonexistent
criminal convictions. Justice Jackson explained (id. at 741)
___
that it was the false foundation of the sentence, "which the
prisoner had no opportunity to correct by the services which
counsel would provide, that renders the proceedings lacking
in due process." See also id. at 739 ("absence of counsel,"
________ ___
where prejudicial, is "violation of due process").5
Today, a whole skein of complex rules determines which
issues may be relitigated, in what circumstances, at what
____________________
5Evidently, the record before the Supreme Court in
Townsend did not make clear whose fault it was that the
________
sentencing judge credited the defendant with three
nonexistent convictions. Justice Jackson contented himself
with saying: "We believe that on the record before us, it is
evident that this uncounseled defendant was either
overreached by the prosecutor's submission of misinformation
to the court or was prejudiced by the court's own misreading
of the record." Id. at 740.
___
-7-
-7-
stage, and under what standard of review. See generally
_____________
W. LaFave & J. Israel, Criminal Procedure (1984); "Project:
__________________
22nd Annual Review of Criminal Procedure," 81 Georgetown L.J.
_______________
853 (1993). Thus, a prosecutor's knowing use of perjured
testimony may pose one issue, 2 LaFave at 19.5; newly
______
discovered evidence a different issue, 3 id. at 27.3(d);
___
and simple disagreement with a jury's reasonable inference
yet another, 3 id. at 26.5. In criminal procedure, as
___
elsewhere, generalities are no substitute for analysis.
Here, Dupont argues that the court relied on materially
untrue assumptions and misinformation when it concluded at
sentencing that Dupont was a substantial drug dealer and that
the items seized in his apartment were tools of the trade and
that Arboleda had some relationship to the conspiracy. An
examination of the argument shows it to be a garden variety
disagreement with the district court's finding that Dupont
played a significant role in the conspiracy. At best, this
is a finding that would be subject, even under the more
rigorous Sentencing Guidelines, to review based upon the
"clearly erroneous" standard. 18 U.S.C. 3742(e). We think
that the finding is amply supported by Lemieux's testimony.
Dupont's quarrels with details are wholly unimportant.
It makes no difference whether, as Dupont contends, the over
$20,000 found were gambling proceeds, the scale calibrated in
ounces rather grams, or the rifles used for hunting. Once
-8-
-8-
the district court credited Lemieux's testimony, Dupont was
going to be labeled as a substantial drug dealer regardless
of what tools he possessed or of Arboleda's precise role.
The district judge, whose credibility determinations are
entitled to great weight, noted in his post-sentence written
findings that he heard Lemieux testify not only at the
hearing but in a number of jury trials.
As for the length of the sentence, which Dupont also
attacks, this is largely unreviewable for pre-guideline
sentences, and Dupont does not come within a mile of raising
a serious constitutional issue regarding length. A seven-
year sentence is no tap on the wrist, but in one respect
Dupont may be fortunate: a guideline sentence for 3.5 to 5
kilograms of cocaine, even for a first time offender, is 97
to 121 months, and under the guidelines, there is no parole.
See U.S.S.G. 2D1.1(c)(7) and sentencing table.
___
In conclusion, we note that on this appeal Dupont has
had the benefit of a sophisticated brief and an able oral
argument by defense counsel. His problem lies not in his
representation, but in the fact that in the resentencing
proceeding he received a legally valid sentence. That
sentence is affirmed.
________
-9-
-9-
