USCA1 Opinion
September 3, 1996
United States Court of Appeals
For the First Circuit
____________________
No. 96-1763
UNITED STATES OF AMERICA,
Appellee,
v.
DANIEL D. TAVARES,
Appellant.
____________________
ERRATA SHEET
ERRATA SHEET
The opinion of this Court issued on August 21, 1996, is corrected
as follows:
On page 15, line 23: replace "inch deep" with "inch long"
United States Court of Appeals
For the First Circuit
____________________
No. 95-1763
UNITED STATES OF AMERICA,
Appellee,
v.
DANIEL D. TAVARES,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
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Campbell, Senior Circuit Judge,
____________________
and Lynch, Circuit Judge.
_____________
____________________
Kevin S. Nixon for appellant.
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Daniel D. Tavares, on brief pro se.
_________________ ___ __
Michael J. Pelgro, Assistant United States Attorney, with whom
__________________
Donald K. Stern, United States Attorney, was on brief for the United
________________
States.
____________________
August 21, 1996
____________________
LYNCH, Circuit Judge. An early-morning assault in
LYNCH, Circuit Judge.
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Mashpee, Massachusetts, on August 29, 1991, resulted in a
chase through nearby woods and the arrest of Daniel D.
Tavares. On May 15, 1992, Tavares was convicted of violating
18 U.S.C. 922(g), the felon in possession of a firearm
statute. Tavares appealed, and this court, sitting en banc,
__ ____
reversed his conviction on the ground that the district
court's decision to allow the government to prove the "prior
felon" element of Section 922(g) rather than accept a defense
stipulation created unfair prejudice. See United States v.
___ _____________
Tavares, 21 F.3d 1 (1st Cir. 1994) (en banc). There was a
_______ __ ____
second trial and, on March 30, 1995, Tavares was again found
guilty. He appeals, asserting: (i) a variety of trial errors
in a pro se submission; and (ii) two sentencing errors
___ __
through a counsel assisted submission. We affirm the
district court on the claimed trial errors, but vacate and
remand on the sentencing issues.
I.
__
On August 29, 1991, Tavares and his companion,
Cyril Pocknett, Jr., were in a confrontation with Sheldon
Blake and Rodney Hunt over accusations of the theft of a car
stereo. Threats were exchanged, but no violence ensued, and
Tavares and Pocknett left the area. Blake and Hunt then went
to Blake's apartment. Blake lived in a second-floor
apartment with his girlfriend, Nicole Cain, and their infant
daughter. About an hour and a half later, Tavares and
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Pocknett returned and buzzed Blake's front door. Hunt opened
the door and Tavares greeted him with a shotgun to the head
and the words, "What's up now, motherfucker?" Standing next
to Tavares was Pocknett, aiming a .22 caliber rifle at Hunt.
Acting on instinct, Hunt grabbed the barrels of
both rifles, pushed them down, and fled up the stairs into
Blake's apartment. Tavares then fired his shotgun repeatedly
into Blake's nearby parked car. Meanwhile, Hunt noticed that
his hand was bleeding. Apparently, in grabbing the barrel of
Tavares' shotgun, he had ripped the palm of his hand on the
gun's sight.
Cain, on hearing the gunshots, rushed to her
daughter's bedroom to protect her from danger. After the
shots subsided, she looked out the window and saw Tavares and
Pocknett running toward the nearby woods. Shortly
thereafter, the police arrived. They searched the woods, and
after a chase, captured Tavares. They also found the shotgun
and .22 caliber rifle, hidden under pine needles.
Back at the apartment building, Hunt, whose right
hand was bleeding profusely, wrapped it in a rag which soon
became bloodsoaked. On entering the building, Officer Alan
Roguzac observed pools of blood in both the hallway and on
the carpeting leading up to Blake's apartment. Soon after,
on seeing Hunt's wound, Roguzac radioed for an ambulance.
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Hunt was taken to the Falmouth Hospital emergency room, where
his hand received eight stitches.
Cain, Blake and Hunt were interviewed by the
police. Specifically, Cain spoke to Sergeant David Mace and
Detective Doris Dottridge.
Trial
_____
Cain did not testify at Tavares' first trial. At
his second trial, however, she testified that on the night of
the incident she had told a male police officer and Dottridge
that she had seen Tavares with a gun. Dottridge could not
recollect any such statement by Cain, but Mace testified
that he was the male police officer to whom Cain had made her
statement. Tavares attacked Mace's testimony by pointing out
that Mace's police report did not specifically report Cain's
statement. Instead, Mace's report said only that "they" had
seen Tavares with a gun. Tavares argued that "they" meant
only Hunt and Blake, whereas Mace asserted that "they"
included Cain as well.
At the conclusion of the six-day second trial, the
jury requested the transcripts of the testimony of Cain,
Hunt, Blake, and Earl Cash, another witness. The court
explained to the jury that, thanks to the court reporter's
personal investment in certain equipment, the court had the
unusual ability to provide them with transcripts within a
short period of time. The court noted, however, that despite
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the reporter's speed, skill and equipment, since the reporter
was needed on a different case the next morning, he might not
be able to satisfy all of the jury's requests, and that the
jury was to proceed in its deliberations nevertheless. The
next morning, the jury was provided with the transcripts for
Cain, Hunt, and Cash, but not Blake. The court told the jury
that, if possible, it would get them the transcript of
Blake's testimony, but reiterated that they should proceed
regardless. Within a little over an hour, and without having
received the transcript of Blake's testimony, the jury
returned a verdict of guilty.
Sentencing
__________
Tavares was sentenced to ten years in prison. The
guideline applicable to his offense of conviction was Section
2K2.1 (unlawful possession of a firearm). See U.S.S.G.
___
2K2.1 (Nov. 1990).1 The court then applied Section 2A2.2
(aggravated assault) by way of a cross-reference in Section
2K2.1.2 As a result of applying the cross-reference,
Tavares' offense level jumped from twelve to twenty-three.
Level twenty-three represented a starting offense level of
fifteen for aggravated assault plus an increase of eight
levels for specific offense characteristics -- a three-level
____________________
1. The court applied the version of the Guidelines in effect
at the time of Tavares' offense. Neither party contends that
a different version should apply.
2. See U.S.S.G. 2K2.1(c)(2) and 2X1.1(c)(1).
___
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increase for the victim's bodily injury and a five-level
increase for the discharge of a firearm. The Pre-Sentence
Investigation Report recommended that the court sentence
Tavares under the aggravated assault guideline because he had
pointed a loaded shotgun at his victim's head, thereby
evincing an "intent to do bodily harm." See U.S.S.G.
___
2A2.2, comment. (n.1(a)). The Guidelines define "aggravated
assault" as "a felonious assault that involved" either "a
dangerous weapon with intent to do bodily harm (i.e., not
____
merely to frighten)" or "serious bodily injury" or "intent to
commit another felony." U.S.S.G. 2A2.2, comment. (n.1).
At sentencing, however, Tavares protested that
there was insufficient record support for either a finding
that he had had the requisite intent to do bodily harm or a
finding that serious bodily injury had resulted. Instead, he
said, the evidence showed that he had merely meant to
frighten his victim. Additionally, Tavares argued that,
under the Guidelines, a serious bodily injury was one that
required hospitalization or surgery. The government argued
that the injury Tavares' victim had suffered, i.e., a cut to
____
the hand requiring a trip to the emergency room and eight
stitches, was in fact a serious bodily injury within the
Guidelines' definition. See id. and U.S.S.G. 1B1.1,
___ ___
comment. (n.1(j)). The court accepted this argument. The
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resulting Guidelines sentencing range, given Tavares'
criminal history category ("CHC") of IV, was 70-87 months.
The sentencing court then departed upward by two
CHC levels and one offense level to achieve a final
sentencing range of 110-125 months. See U.S.S.G. 4A1.3,
___
p.s. (departures beyond CHC VI may occasionally be
appropriate in cases of an "egregious, serious criminal
record"). The court's stated basis for the upward departure
was that Tavares had, in fact, committed three state crimes
(that had resulted in "guilty filed" dispositions as opposed
to outright convictions3) that were not counted in his CHC
score and that a CHC of IV did not adequately reflect the
true seriousness of Tavares' chronic criminality.
Tavares appeals, asserting errors in both the trial
and sentencing.
II.
___
Trial
_____
____________________
3. "Guilty filed" dispositions in the Commonwealth of
Massachusetts involve an admission of sufficient facts for a
possible finding of guilt, but not an explicit admission of
guilt. The primary focus of the sentencing hearing after
Tavares' second federal trial was whether three of his
"guilty filed" dispositions counted as predicate convictions
under the Armed Career Criminal Act ("ACCA"). See 18 U.S.C.
___
924(e). The sentencing court ruled that the "guilty filed"
dispositions could not be counted as convictions under the
ACCA. The court explained, however, that as there was
sufficient evidence that Tavares had in fact committed the
state crimes, and because, had they been convictions, they
would have resulted in a minimum federal sentence of fifteen
years, it was going to depart upward and sentence Tavares to
ten years.
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Tavares' pro se brief asserts that the district
___ __
court committed reversible error in: (i) failing to provide
the jury with a transcript of a particular witness' testimony
that it had requested and instructing the jurors that they
should proceed to deliberate without that transcript; (ii)
permitting the jury to "view" the allegedly perjured
testimony of a witness; (iii) failing to ask the jury whether
its request for transcripts pertained to the instant trial or
prior proceedings. Because contemporaneous objections were
not made with respect to any of the claims, review is for
plain error. See, e.g., United States v. Cruz-Kuilan, 75
___ ____ _____________ ___________
F.3d 59, 62 (1st Cir. 1996). We discern no miscarriage of
justice and Tavares' claims fail this review. See, e.g.,
___ ____
United States v. Sullivan, 85 F.3d 743, 751 (1st Cir. 1996).
_____________ ________
A. Failure to Provide Transcript
________________________________
After deliberations commenced, the jury asked to
review the testimony of four witnesses: Cain, Hunt, Cash and
Blake. The next morning, the court was able to provide the
jury with transcripts for Cain, Hunt and Cash, but Blake's
was not yet ready. The court reporter was needed on another
case and the court told the jurors that, if possible, they
would be provided with the transcript, but that they should
proceed with their deliberations regardless. Tavares argues
that this was reversible error.
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Decisions regarding the provision of trial
transcripts to the jury are within the discretion of the
trial judge. See United States v. Akitoye, 923 F.2d 221, 226
___ _____________ _______
(1st Cir. 1991) (decision as to whether requested testimony
should be reread to jury rests in trial court's discretion).
In making its decision, the trial judge is to consider
factors such as the ease or difficulty of compliance with the
jury's request and what is likely to be gained or lost. Id.
___
The court here provided the jury with three of the four
transcripts requested. The one transcript not provided was
that of Blake, who had testified most recently, and that was
because the court reporter was needed for another case. Cf.
___
id. (where testimony is fresh in jury's mind there is less of
___
a need for rereading). We discern no plain error either in
the non-provision of the transcript or in the instruction
that the jury should continue deliberations.
B. Perjured Testimony
_____________________
Tavares argues that the court erred in permitting
the jury to "view" the perjured testimony of Cain, a
government witness.4 Tavares further asserts that the
government knew or should have known that not only was Cain's
testimony perjured, but that the supporting testimony of
Sergeant Mace was perjured as well. Tavares, however, has
____________________
4. We assume that Tavares is referring to the court's
provision of the jury with the transcript of Cain's testimony
during deliberations.
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not shown that either witness committed perjury. And so the
argument fails for want of a foundational piece.
Cain testified at the instant trial that: (a) on
the night of the incident, she saw Tavares with a gun; and
(b) that she had told this to the police on the scene. Cain
did not, however, testify at Tavares' first trial.
Tavares says that her testimony at the instant
trial must have been perjured because there was no record of
her having related this information to the police on the
night in question. Tavares theorizes that the government,
having been reversed once, used perjured testimony to ensure
its victory in the second trial. As support, he points to
the testimony of Dottridge, one of the officers whom Cain
allegedly told of having seen Tavares with a gun. Dottridge
testified that she could not recall Cain having stated that
she saw Tavares with a gun. There was, however, testimony
from Dottridge's colleague, Mace, that he had heard Cain's
statement. But Tavares says that Mace's testimony must have
been perjury as well because Mace's police report did not
state specifically that Cain had seen Tavares with a gun.
Instead, Mace's report stated that "they" had seen Tavares
with a gun, without specifying which witnesses "they"
referred to.
"[A] conviction obtained by the knowing use of
perjured testimony is fundamentally unfair, and must be set
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aside if there is any reasonable likelihood that the false
testimony could have affected the judgment of the jury."
United States v. Agurs, 427 U.S. 97, 103 (1976) (footnotes
_____________ _____
omitted). Under federal law, perjury occurs when a "witness
testifying under oath or affirmation . . . gives false
testimony concerning a material matter with the willful
intent to provide false testimony, rather than as a result of
confusion, mistake, or faulty memory." United States v.
_____________
Dunnigan, 507 U.S. 87, 94 (1993) (referring to the definition
________
of perjury under 18 U.S.C. 1621). Tavares, however, has
pointed to no more than an inconsistency (between Cain's
testimony and that of Dottridge) and an unclear police report
(that of Mace). Inconsistent testimony by itself does not
amount to perjury, nor does an unclear police report make it
so. See United States v. Gary, 74 F.3d 304, 314 (1st Cir.)
___ _____________ ____
("it is axiomatic that inconsistent testimony is not per se
___ __
perjurious"), cert. denied, 116 S. Ct. 2567 (1996). Further,
_____ ______
the fact that Cain did not testify at Tavares' first trial,
but did at the second, avails Tavares naught. See Anderson
___ ________
v. United States, 403 F.2d 451, 454 (7th Cir. 1968)
______________
(inconsistency in witness' testimony between trials is not,
alone, enough to show perjury), cert. denied, 394 U.S. 903
_____ ______
(1969); cf. United States v. Lebon, 4 F.3d 1, 2 (1st Cir.
___ _____________ _____
1993) (defendant did not show perjury merely by showing that
witness changed her story between post-arrest interview and
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trial). Tavares made no request that the trial court make a
finding of perjury. We decline his invitation that we now
find willful intent to provide false testimony based on no
more than an inconsistency in testimony and a dispute over
the clarity of a police report.
C. Transcript From Prior Trial
_______________________________
Tavares' final trial-related claim is that the
court misunderstood the jury's request for transcripts and
sent in the wrong transcripts. The court sent in the
transcripts of the instant trial, but Tavares says that the
______________
jury was, in fact, requesting the transcripts of his prior
_____
trial for the same offense. The claim is unavailing.
_____
To the extent there was ambiguity in the jury's
request for transcripts, Tavares had the ability to
contemporaneously request clarification. He did not do so.
Nor has Tavares pointed to any sign that the jury thought
that they had been given the wrong transcripts. We reject
the claim.
III.
____
Sentencing
__________
In his counsel-assisted submission, Tavares claims
that the sentencing court erred in: (i) determining that he
had committed an aggravated assault and that his sentence was
thus governed by Section 2A2.2; and (ii) in determining that
he had an egregious, serious criminal record that, under
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Section 4A1.3, warranted an upward departure from the
Guidelines' recommended range of 70-87 months to a sentence
of 120 months.5 A. Aggravated Assault
_____________________
Tavares argues that the sentencing court erred in
determining that his offense was an aggravated assault within
the meaning of Section 2A2.2. However, because of a fact-
based internal inconsistency in the court's application of
Section 2A2.2, we are unable to decide the merits of Tavares'
challenge and remand for clarification and resentencing.
The aggravated assault guideline is structured so
that a victim's serious bodily injury both functions as a
trigger for the application of the guideline as a whole and
___
provides a basis, in applying the guideline, for an
additional upward offense level adjustment. In effect, the
guideline provides two separate opportunities for a court to
give effect to a finding of serious bodily injury. See
___
United States v. Newman, 982 F.2d 665, 673-75 (1st Cir. 1992)
_____________ ______
(double counting of victim's serious bodily injury
permissible under Section 2A2.2), cert. denied, 510 U.S. 812
_____ ______
(1993). Here, the sentencing court appeared to determine
that the victim had suffered serious bodily injury for
purposes of deciding the applicability, vel non, of the
___ ___
aggravated assault guideline, but also determined that the
____________________
5. Tavares' pro se brief raises the same sentencing issues,
___ __
albeit with less clarity. We, therefore, focus on his
counsel-assisted submission.
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victim had suffered something less than serious bodily injury
____
for purposes of applying the guideline's internal provisions
for offense level adjustment.
The Guidelines define aggravated assault as a
felonious assault involving:
(a) a dangerous weapon with intent to do
bodily harm (i.e., not merely to
____
frighten), or
(b) serious bodily injury, or
(c) an intent to commit another felony.
U.S.S.G. 2A2.2, comment. (n.1). Serious bodily injury, in
turn, is defined as:
[(i)] injury involving extreme pain or
the impairment of a function of a bodily
member, organ or mental faculty; or
[(ii)] requiring medical intervention
such as surgery, hospitalization, or
physical rehabilitation.6
U.S.S.G. 1B1.1, comment. (n.1(j)). Tavares caused his
victim to suffer a laceration to the hand that required a
trip to the emergency room and eight stitches. The court
determined that that injury was sufficiently analogous to an
injury requiring surgery, hospitalization, or physical
rehabilitation to fall within the definition of serious
bodily injury; thus, Section 2A2.2 applied.
____________________
6. In contrast, "bodily injury" is defined as "any
significant injury; e.g., an injury that is painful and
____
obvious, or is of a type for which medical attention
ordinarily would be sought." U.S.S.G. 1B1.1, comment.
(n.1(b)).
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The court did not find on the record before it that
the brandishing of the shotgun itself was done with the
"intent to do bodily harm." Absent such a finding, the
aggravated assault determination could not be premised on
note 1, part (a), of the commentary to Section 2A2.2. While
such an intent may in fact have been present, the record
before the district court did not require such a finding.
We, therefore, cannot rest an affirmance on such a ground.
The next step was to calculate adjustments to
Tavares' offense level under the specific offense adjustment
provisions of the aggravated assault guideline. The
aggravated assault guideline provides for different increases
in the offense level, depending on the seriousness of the
victim's injury:
If the victim sustained bodily injury,
increase the offense level according to
the seriousness of the injury:
Degree of Bodily Injury Increase in Level
_______________________ _________________
(A) Bodily Injury add 2
(B) Serious Bodily Injury add 4
_____________________
(C) Permanent or
Life-Threatening
Bodily Injury add 6
(D)If the degree of injury is between that
________________________________________________
specified
_________
in subdivision (A) and (B), add 3 levels; or
_________________________________________
(E)If the degree of injury is between that
specified
in subdivisions (B) and (C), add 5 levels.
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U.S.S.G. 2A2.2(b)(3) (emphasis added). The sentencing
court increased Tavares' offense level by three. A three
_____
level increase applies when the magnitude of the victim's
injury is between bodily injury and serious bodily injury.
_______
See U.S.S.G. 2A2.2(b)(3)(D). But this determination --
___
that the victim's injury was less than a serious bodily
____
injury -- is in direct conflict with the court's basis for
applying the aggravated assault guideline in the first place,
i.e., that the victim had suffered a serious bodily injury.7
____
Were the inconsistency in the court's application
of Section 2A2.2 a purely legal matter, we might be able to
resolve it ourselves, without the need to remand. But we do
not think that the question can be reduced to a purely legal
one. Depending on context, an inch long laceration requiring
eight stitches might or might not constitute serious bodily
injury. For example, if there was a great deal of blood
loss, or the victim was a hemophiliac, such an injury might
well be thought serious. More generally, we cannot say that
the victim's injury in this case is of a kind that would
____
categorically call for its characterization as "serious" or
_____________
not. Lacerations can be life-threatening or trivial; where
____________________
7. We note that a three level increase in offense level
would not have produced such a conflict if the court's
decision to apply Section 2A2.2 had been premised on a
determination that there was an "intent to do bodily harm."
See U.S.S.G. 2A2.2, comment. (n.1(a)).
___
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on the sliding scale of severity a particular laceration
falls is not a determination that can be made solely as a
matter of law.
As explained in Newman, we review the sentencing
______
court's "fact dominated evaluative judgment" of the
seriousness of the victim's injury for clear error. 982 F.2d
at 671. This is not a case in which the record either
clearly precludes or mandates a finding of serious bodily
injury. In the context of clear error review, it is not for
this court to choose between two mutually inconsistent fact-
based determinations that each has some plausibility in light
of the record. Since, on this record, we cannot reconcile
or resolve the sentencing court's dual findings of the
severity of the victim's injury, we are left no alternative
but to vacate the sentence and remand for resentencing. The
district court is free to make new findings or reconsider the
basis for the adjustment entirely. Cf. United States v.
___ _____________
Wester, __ F.3d __, __, slip op. at 21, No. 95-1143 (1st Cir.
______
July 22, 1996).
B. Egregious, Serious Criminal Record
_____________________________________
Tavares next argues that the court erred in
departing upward from the recommended 70-87 month sentencing
range (that applied as a result of applying the aggravated
assault guideline) to a sentence of 120 months. The
sentencing court made the departure because it determined
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that the CHC of IV that had produced the 70-87 month
recommended range did not adequately reflect Tavares'
extensive criminal record. It therefore increased Tavares'
CHC level by two, to CHC VI (the Guidelines' highest level,
resulting in a sentencing range of 92-115 months), and then
within CHC VI, departed higher still, to a sentence of 120
months. The Guidelines, in the proper circumstances,
encourage departures in CHC levels, but, for departures
beyond CHC VI, require that the defendant have an "egregious,
serious criminal record." U.S.S.G. 4A1.3, p.s.; see also
___ ____
United States v. Doe, 18 F.3d 41, 48-49 (1st Cir. 1994);
______________ ___
United States v. Mendez-Colon, 15 F.3d 188, 190 (1st Cir.
_____________ ____________
1994). Tavares argues that his criminal record was not
egregious and serious and that the sentencing court erred in
determining so.
The sentencing court explained that had Tavares'
three "guilty filed" dispositions from the state court been
convictions, a minimum sentence of fifteen years would have
resulted under the ACCA. See 18 U.S.C. 924(e). Since
___
there were sufficient facts for the court to find by a
preponderance of the evidence that the three state crimes
were in fact committed, it found a ten year sentence
appropriate. Based on Tavares' extensive criminal history,
we see no abuse of discretion in the court's upward CHC
departure. See United States v. Koon, 116 S. Ct. 2035, 2047-
___ _____________ ____
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48 (1996) (abuse of discretion standard appropriate when
examining district court's decision to depart from the
Guidelines). Similarly, we see no abuse of discretion in the
extent of the departure. See id. However, since the
___ ___
sentencing court's offense level determination is in
question, we leave it to the sentencing court to redetermine,
on remand, the extent of CHC departure warranted.
77 IV.
___
The judgment of conviction is affirmed. The
________
sentence, however, is vacated, and the case is remanded for
_______ ________
resentencing.
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