USCA1 Opinion
April 12, 1996
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 95-2232
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN J. CONWAY,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
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Before
Selya, Circuit Judge,
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Aldrich, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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Barry T. Albin with whom Peter A. Gaudioso and Wilentz, Goldman &
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Spitzer were on brief for appellant.
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Peter E. Papps, Assistant United States Attorney, orally; Donald
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A. Feith, Assistant United States Attorney, with whom Paul M. Gagnon,
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United States Attorney, and Michael J. Connolly, Assistant United
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States Attorney, were on brief for appellee.
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April 11, 1996
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ALDRICH, Senior Circuit Judge. John J. Conway pled
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guilty to one count of conspiracy to defraud the American
Honda Motor Company in violation of 18 U.S.C. 1343 and
1346. He now appeals his sentence, specifically the court's
refusal to grant the government's motion on his behalf for a
four level downward departure for substantial assistance.
U.S.S.G. 5K1.1. Normally an appeal is not available for such
a broadly discretionary decision, United States v. Mariano,
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983 F.2d 1150, 1153-54 (1st Cir. 1993), but there is an
exception in case of an error of law. Id. at 1153; 18 U.S.C.
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3742.1 This is such a case. Defendant makes a colorable
claim that his Fifth Amendment rights to due process and not
to be made a witness against himself were violated when the
court based its decision to deny downward departure, and to
give the maximum sentence under the applicable guideline
range, on self-incriminating information he had divulged
pursuant to a plea agreement to provide the government with
substantial assistance in exchange for immunity and a motion
for downward departure.2 Noting the standard provision that
it was not bound to accept the government's recommendation,
Mariano, 983 F.2d at 1155, the court, while admitting the
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1. Appellate jurisdiction exists for sentences "imposed in
violation of law." 18 U.S.C. 3742(a)(1). See United
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States v. Drown, 942 F.2d 55, 58 and n.6 (1st Cir. 1991).
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2. The possibility that in its discretion the court might
have reached the same result absent any error does not defeat
jurisdiction. See Drown, 942 F.2d at 60.
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sufficiency of defendant's disclosures to warrant the
departure, denied it on the ground that it would lead to too
light a sentence for a defendant so revealed. Defendant
objects that the effective "countervailing factors" found by
the court to "militate against granting a motion for downward
departure" came to the court's attention solely by reason of
disclosures he had provided in exchange for a promise that
they would not be used against him. We concur, and remand
for resentencing.
The plea agreement read as follows:
No truthful information provided by Mr.
Conway to government attorneys or law
enforcement officers, pursuant to this
agreement, or any information directly or
indirectly derived from such information,
will be used against Mr. Conway by the
government provided that Mr. Conway
complies with the terms of this
agreement. As to information provided by
Mr. Conway regarding unlawful activities
involving himself and others that was not
known to the government prior to entering
into this agreement, such information
shall not be used in determining the
applicable guideline range, pursuant to
U.S.S.G. 1B1.8.
It is clear, first of all, that the plea agreement
does not bind the court "to comply blindly with the
prosecutor's wishes," Mariano, 983 F.2d at 1155, and that,
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except as restricted by the Guidelines, other federal
statutes, or the United States Constitution, the court
"retains broad discretion to exhume factors unrelated to
substantial assistance before burying the [guideline
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sentencing range]." Id. at 1156-57. We also agree that the
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language of the agreement, as written, deserves the
interpretation the court gave it at the time of sentencing:
defendant received a promise that, (1) the information
disclosed would not be used against him by the government --
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e.g., as a basis for future prosecution, for refusing to make
a motion for downward departure, or for any other government
action against him -- and, (2) it would not be used in
calculating his guideline range -- no more. As written, the
agreement does not preserve the blanket protection defendant
claims he bargained for in exchange for waiver of his Fifth
Amendment right not to be a witness against himself. See
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United States v. Hogan, 862 F.2d 386, 388 (1st Cir. 1988)
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(plea agreements are to be interpreted according to contract
law principles). So interpreted, defendant cannot state a
claim that his rights were violated.
There was, however, a difficulty, provided by the
court itself. At the hearing at which the court undertook to
determine, in lengthy converse with defendant, whether he
understood the consequences of entering the agreement and the
plea, see F.R.Crim.P. 11(c), the court did not quote the
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agreement fully. After explaining to defendant his
obligation under the agreement to make full, truthful
disclosure, and the consequences of failing to do so, it
stated, "Now, any truthful information that you provide the
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government during the course of your cooperation will not be
used against you." The original limitation, to non-use "by
the government," was omitted. In all fairness, was defendant
supposed to remember it? The whole purpose of the plea
hearing is to assure full understanding. The objectively
reasonable understanding in defendant's ears when he signed,
see Hogan, 862 F.2d at 388, was that he was assuming an
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obligation to speak in exchange for, among other things, a
grant of full use immunity for whatever he disclosed. True,
the court went on to quote the agreement's provision that the
information "will not be used in determining the applicable
guideline range," which we observe would be superfluous if
the prior statement is interpreted to grant full use
immunity. The implication, and the principle inclusio unis
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exclusio alterius est are rules of construction known to
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lawyers, but a defendant surely cannot be expected to apply a
lawyer's analytical tools in a colloquy conducted
specifically to assure his lay understanding. We are
particularly loathe to do so when the effect would be to
contradict apparent absoluteness. At best, the court's
second statement created an ambiguity that we must resolve in
favor of defendant's reasonable understanding.
The case comes down to this. A plea agreement is a
contract under which both parties give and receive
consideration. The government obtains a conviction that it
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otherwise might not have. The defendant, correspondingly,
receives less, or a chance at less, than he otherwise might
have. In this case the government received something more --
tangible disclosures concededly of substantial value in light
of the return offered defendant (non-use of the information),
which was promised not merely as hope, but as firm. Under
F.R.Crim.P. 11(e)(3) and (4) the court may accept or reject
the agreement. Here the court expressly defined in absolute
terms the benefit defendant should expect. Under the
agreement the court could have denied the government's motion
for a downward departure, but it cannot be thought it should
do so by relying on the very disclosures that defendant was
bargained to make on an immunization promise. While
doubtless the court did not recall this record inadvertency,
surely due process, not to mention public perception of the
courts, should forbid such a result.3
This brings us to the remand itself. It will be
open to the court, after vacating the present sentence, again
to address the issue of a downward departure. In this case,
however, the court should not change the finding that
defendant had rendered substantial assistance to the
government, and if it is to be rebutted it must be on new
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3. To the extent that U.S.S.G. 1B1.8(b)(5) and application
note 1 appear to the contrary, the constitutional
prerogatives in this case must prevail.
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findings, which we suggest should be stated, independent of
defendant's disclosures.
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We vacate defendant's sentence and remand for
resentencing.
-Concurring opinion follows-
-Concurring opinion follows-
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SELYA, Circuit Judge (concurring). While I have no
SELYA, Circuit Judge (concurring).
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doubt that the defendant in this case has been treated
fairly, I agree with my colleagues that the combination of
the district judge's unfortunate slip of the tongue during
the change-of-plea hearing and his frank use of information
elicited from the defendant during debriefing to impose a
sentence at the top of the guideline range creates a
perception of unfairness and requires vacation of the
sentence. I write separately, however, to highlight four
points.
First, this is not a case in which the court coaxed
a plea through a misrepresentation. Mr. Conway is an
intelligent, well-educated businessman who was represented
throughout by distinguished counsel. Insofar as I can tell,
he was not actually misled and the judge's lapsus linguae had
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no actual effect on the course of the proceedings.4
Nevertheless, I cannot vote to uphold the sentence. When the
public perception of justice is imperilled by the court's
actions in a criminal case, the usual rules of harmless error
do not apply.
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4. This conclusion is underscored, if not compelled, by the
late blossoming of any argument based on the court's
misstatement at the change-of-plea hearing. The defendant's
brief on appeal is devoid of developed argumentation in this
regard, and the judge's statement was first mentioned at oral
argument in this court (and then, only in passing).
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Second, it is important to emphasize that this case
is sui generis. Under ordinary circumstances, the guidelines
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permit information obtained from a cooperating defendant
during debriefing to be used in determining the defendant's
sentence (as long as the plea agreement does not impose a
further limitation on these uses). See U.S.S.G. 1B1.8(b)(5)
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& n.1.
Third, the plea agreement in this case, interpreted
under principles of contract law, see United States v. Hogan,
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862 F.2d 386, 388 (1st Cir. 1988), imposed no such special
limitation. Were it not for the judge's inadvertent
misstatement during the change-of-plea colloquy, the court
could have used the information obtained during debriefing
either to deny the downward departure, or to fix the
defendant's sentence within the appropriate guideline range,
or for both purposes.
Fourth, under the plea agreement, the guidelines,
and binding precedent in this circuit, see United States v.
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Mariano, 983 F.2d 1150, 1157 (1st Cir. 1993), the district
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court was obliged fully to consider the elicited information
in determining whether to grant the government's section
5K1.1 motion for a downward departure. On remand, the
district court remains obliged to consider all the
information. And, moreover, even if the court finds that the
defendant substantially assisted the investigation, it is not
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obligated to grant the section 5K1.1 motion and depart
downward, see Mariano, 983 F.2d at 1156-57, or,
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alternatively, to impose a sentence at the bottom of the
guideline range.
Despite the court's substantial discretion in these
respects, I agree with my colleagues that resentencing is
required. When, as now, a sentencing court makes clear that
a discretionary action even a discretionary action that the
court has no legal obligation to explain at all5 is
premised on an impermissible consideration, the court of
appeals must intervene. See United States v. Drown, 942 F.2d
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55, 60 (1st Cir. 1991). To this extent, the judge pays a
high price for candor but justice demands the exaction.
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5. A good example, apropos here, is that, subject to certain
exceptions not relevant in the circumstances at bar, a
sentencing court has no legal obligation to explain why it
chooses a particular sentence within a narrowly defined
guideline sentencing range. See, e.g., United States v.
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Levinson, 56 F.3d 780, 780 (7th Cir. 1995); United States v.
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Garrido, 38 F.3d 981, 986 (8th Cir. 1994); United States v.
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Lively, 20 F.3d 193, 198 (6th Cir. 1994). By like token, a
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sentencing court customarily need not explain the basis for
its refusal to depart downward. See, e.g., United States v.
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Lombardi, 5 F.3d 568, 572 (1st Cir. 1993).
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